Saturday, April 20, 2013

What you need to know about Miranda

Whether or not Dzhokhar Tsarnaev will get his Miranda rights read to him seems to be much more important to some people right now than whether or not he's currently healthy enough for these legal issues to matter. But such is the state of mind of people with Obama Derangement Syndrome - be their name Graham or Greenwald.

And so I thought I'd collate some informative reading on the subject for those of you that - like me - might be scratching your heads and wondering WTH is going on.

Doug Mataconis writes Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception:
Contrary to the conclusion that most people are likely to gather from watching crime dramas like Law & Order, officers are not required to give the warning before they arrest someone and failure to give the warning will not result in dismissal of the case. Miranda is more properly seen as an evidentiary rule that the government must follow if it wishes to interrogate a suspect and eventual defendant and use whatever statements that interrogation elicits against him in court. If a suspect is not given his or her Miranda warnings and the state then attempts to utilize post-arrest statements against him, then the government will generally be barred from using that statement against him in Court.
Orin Kerr writes Tsarnaev and Miranda:
A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case.
Mike Thompson writes Pontificating about Miranda Rights:
The biggest misconception of our Miranda rights is that somehow, someway it is a violation of the law for law enforcement to not give us our Miranda rights upon arresting or taking us into custody.

One of my biggest pet peeves as a civil rights attorney is the mistaken impression that police officers are required to advise us of our Miranda rights in order to arrest us. Guess what. That is just plain wrong...

Read carefully what I write here…

The failure of the police to give you your Miranda rights merely means that what you say to them while in custody is not admissible at trial. As should be evident from the Miranda case quotes I referenced above, Miranda is all about protecting your right not to incriminate yourself. It does not protect you from the things you said and did prior to being taken into custody though. And, as should be obvious, it does not protect you from the things you say freely after being given the advisement.
As these writers go on to point out - law enforcement currently has more than adequate evidence to convict Tsarnaev in a court of law. What they are interested in is things like whether or not there are other explosives either set to go off or stored in hiding someplace, did he have any other accomplices, etc. Its highly unlikely that anything he has to say now will affect the outcome of the case against him.

So can we please stop with all the hair-on-fire about Miranda?


  1. Besides which, is there anyone who isn't aware of their Miranda rights?

  2. The only Miranda rights I'm concerned about today are Miranda Lambert's rights.

  3. It's also important to note that reading a Miranda warning is not a precondition for 4th, 5th, and 6th Amendment rights. If the first thing Tsarnaev says to interrogators is "I want a lawyer," then the interrogation ends and he gets a lawyer. They don't have to read him Miranda for him to get a lawyer, or for him to refuse to answer questions. He has those rights regardless. Reading Miranda simply ensures that he knows about those rights.