Miranda Made Clear

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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3 Responses

  1. Avatar Mike Schilling says:

    Miranda is a reminder — Shahzad has those rights and can insist on them regardless of whether he’s explicitly reminded of them or not. The tactical decision Kerr talks about isn’t really whether to Mirandize a suspect, it’s whether to press for an inadmissible statement or not; in fact, it’s quite possible to take an inadmissible statement after Miranda, say, by refusing to contact an attorney and instead continuing the interrogation. That might even work better:

    “I asked you a question, dammit!”

    “You said I had the right to remain silent.”

    “Yeah, well, we have to read that, but it doesn’t apply to scum like you. Start talking. Now.”

    And, much as Kerr wants to rationalize what McCain said to build a false equivalence (“See, neither side is really 100% correct”), the fact is that McCain was grandstanding, trying to make sure no one got to the wingnut side of him, and the Constitution be damned if it would cost him the primary.Report

    • @Mike Schilling, I don’t think Kerr is defending McCain at all – he certainly doesn’t mention McCain or King. Rather he is pretty clearly defending how the FBI actually proceeded.

      I think the point that you have to keep in mind, as well – and I hate to keep pounding on this drum – is that the rights Miranda protects are explicitly limited to the context of what sorts of statements can and cannot be used against someone in court.

      Think of it this way – there’s no constitutional prohibition against the cops/FBI/CIA/whoever showing up at your door to “just ask a few questions to assist in their investigation.” You, of course, are under no obligation to answer those questions, but there’s also no requirement that they Mirandize you when they do so. That said, they still have to (obviously) respect your due process rights – they can’t hit you, they can’t abuse you, etc. But they can ask questions, and they can even be pretty intimidating in so doing if they wish.

      A few weeks later, they decide to arrest you on an unrelated charge. You are not a suspect in the original investigation (and in fact are completely innocent in that investigation), but they’ve got good reason to believe that you know more than you previously told them and they want to question you again.

      Certainly, they are permitted to do so. But in that questioning, you’re not going to have any Miranda rights – there’s no risk that your statements will be used to convict you on anything. For purposes of this questioning, you’re not going to have any relevant Sixth Amendment right to counsel, either, because the questioning has nothing to do with preparing a defense for trial.

      You’ll still have your due process rights, to be sure, and indeed those rights may even be enhanced due to the fact that you’re in custody (for instance, if they kept questioning you for long enough that sleep deprivation became a real issue; in the confines of your own home, where you could simply ask the officers to leave, this wouldn’t be much of a constitutional problem, but in the context of being held in custody it would be a big problem).

      But the investigator would be perfectly justified in questioning you without Mirandizing you for the exact same reason that he’d have been justified in questioning you without Mirandizing you before you were arrested – Miranda, and the rights it protects, are irrelevant because there’s no risk of any independent harm to those rights. Meanwhile, reminding you of your Miranda rights would only serve to make the investigation more difficult. Suddenly, you’re worried that you’re a suspect in the original investigation, and you’re certainly worried that they’re going to ask you something that they’re going to use in relation to the charges that are already pending against you. So you’re much more likely than you otherwise would be to clam up and ask for a lawyer, even though there is in reality zero possibility that your right against self-incrimination will be affected.

      Turning to the Times Square bomber, the only difference from the above scenario is that the two investigations are obviously closely related. Miranda effectively means that, if the feds decide not to advise him of his rights during a particular interrogation session, then they have to treat the investigations as separate. As long as they do that (and abide by due process protections), then there’s no injury or even risk of injury to his 5th Amendment rights. The decision to ask those questions without a Miranda warning thus becomes a purely strategic decision for the feds.

      The due process issue, by the way, strikes me as something that could (or at least should) wind up being a major restriction on a post-arrest interrogation in the absence of Miranda rights. What happens, for instance, where the arrestee asks the interrogator to leave or asks to return to his cell, but the interrogator refuses, even if just for an hour or so more? Outside of custody, I would think that would be at least a nominal due process violation (and at the very least it would be trespassing), and I would argue it should likewise be so once you’ve got somebody in custody on an unrelated charge.Report

  2. Avatar lukas says:

    despite his HTML fail

    Speaking of which, what’s the matter with preview?Report

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