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Chris April 23, 2013

Following the capture of Boston Marathon bombing suspect Dzokhar Tsarnaev, many media members and armchair attorneys beat ourselves up over whether Mr. Tsarnaev would and should be given his Miranda rights by the investigators and prosecutors before they attempted to question him. The “public safety” exception that was articulated in New York v. Quarles, 467 U.S. 649 (1984), was cited as authority to question him before he was given his Miranda rights and still use those statements against him at trial.

Some quick background on Miranda. As I wrote in my Sound of Silence post last week, the Miranda rule, rooted in the right against self-incrimination, requires law enforcement authorities to advise a suspect in custody that he or she has the rights to remain silent and to consult with an attorney before questioning. The Miranda warning does not have to be given at the time of arrest (as it is for nearly every TV arrest) but only before the suspect is questioned. The remedy for a violation is that the statements obtained absent the confession cannot be used at trial against the defendant. Very often the government can prove a defendant’s guilt without a confession. Ernesto Miranda for one, had his original conviction overturned in the case that led to the rule which now bears his name, but was convicted again in his second trial without his confession in evidence. (After he was released from prison, Miranda made some money autographing Miranda rights cards.) Whether he was advised of his rights or not, these are rights that Mr. Tsarnaev always had. These are rights that we all have in our criminal justice system.

Mr. Tsarnaev was advised of his rights by a federal judge in his initial appearance, which was held yesterday in the hospital where he is being treated for his injuries. The right to counsel attaches at this hearing and the court appointed a federal (public) defender to represent Mr. Tsarnaev in that and subsequent proceedings. Since he is represented by counsel, he cannot be questioned by investigators or prosecutors without his attorney’s knowledge and presence. This right is based in the Sixth Amendment (incorporated on the states by the 14th) right to counsel. All persons charged with a crime have the right to effective counsel. Now that he is charged with various crimes, Mr. Tsarnaev has will be afforded such representation. The court advised him of this right as well as his Fifth amendment right against self-incrimination. Read the transcript of that hearing below:

If you followed me on Twitter the past few days (if you don’t follow me, do so here), you’d see that I was in the camp to inform Mr. Tsarnaev of his rights before any questioning. I am skeptical of any expansion of existing exceptions to rights and protections because these are all of our rights.