At a press conference in Boston last evening United States Attorney Carmen Ortiz announced that the captured bombing suspect would not be given his "Miranda Warnings" citing the "public safety" exception to the rule. What is the public safety exception, does it apply in this case and is it a good idea to employ it?
THE MIRANDA WARNING
What has commonly become known as the "Miranda Warning" is a statement delivered to a suspect once in custody advising him that he has the right to an attorney before questioning. It is not required by the Constitution but was created by the Supreme Court in the case of Miranda v. Arizona.
The court ruled that a persons Fifth Amendment right to be free from coerced self incrimination was a substantial right and that any statements given during custodial interrogation must be voluntary. As such, to insure the voluntariness of statements given while in custody the suspect would have to be advised of his right to remain silent, his right to an attorney and the consequences of voluntarily giving up those rights before his statements could be used as substantive evidence of guilt, at trial.
THE PUBLIC SAFETY EXCEPTION
In the case of New York v Quarles the United States Supreme Court carved out of the "Miranda Warning" a public safety exception which under very limited circumstances permitted questioning and use of the statements obtained by that questioning without advising the suspect of his rights to remain silent or his right to the assistance of a lawyer or his the consequences that might flow from any statements he gave.
However, that exception is very difficult to prove.
According to the Supreme Court, the public safety exception is triggered when police officers have an objectively reasonable need to protect the police or the public from immediate danger. Because the standard is objective, the availability of the exception does not depend on subjective motivation of the officers. Legitimate concerns for officer safety or public safety prompting unwarned custodial questioning arise in a variety of contexts. A common factor that can be gleaned from the courts addressing this issue is the prior knowledge or awareness of specific facts or circumstances that give rise to the imminent safety concern that prompted the questioning. [FBI]
In the case of the Boston bombing suspect there is no immediate danger to police since the man is secured. The case for immediate danger to the public would depend upon "objective" evidence that other bombs, or threats, superseded the man's right to remain silent. The police will have to demonstrate more than fear of these things, they will be required to show objective proof.
If they can do that, then they are limited in their questioning.
The Quarles Court made clear that only those questions necessary for the police "to secure their own safety or the safety of the public" were permitted under the public safety exception. [FBI]
In addition the police will be required to show that any statement made was voluntary.
Voluntariness is the linchpin of the admissibility of any statement obtained as a result of government conduct. Thus, statements obtained by the government under the public safety exception cannot be coerced or obtained through tactics that violate fundamental notions of due process. [FBI]
As you can see, the benefits of using the "public safety" exception are very limited.
IS IT A GOOD IDEA TO RELY UPON THE PUBLIC SAFETY EXCEPTION
There are dangers in questioning the suspect without giving him his "Miranda Warning" by relying upon the public safety exception.
First, bringing anything he says under the exception will require substantial proof on all of the above points. His mental status and physical condition will be factors in determining voluntariness. The tactics and techniques used will almost certainly have to be recorded. The scope of the questions must be severely limited and any variance will be decided after the fact by a court.
Objective proof of a real, not perceived or worried about, public safety concern will have to be demonstrated.
Second, he might begin talking about many other things which would trigger an immediate Miranda Warning. If one was not given in time, anything he says might be unavailable for use in court.
Third, any deviation from the exception could render a confession or testimony concerning others ultimately inadmissible, ruining any chance for a conviction on certain of the anticipated charges.
Rather, ordinary police work and proper interrogation might be the safer course to take. Trying to invoke the "public safety" exception could turn out to be a very bad decision, in hindsight.
Does anyone watch any of the cop shows on T.V. Can anyone really say that they don't know the Miranda warning. Just because they didn't tell him slowley and clearly to his face dosen't mean that he can't keep his mouth shut.
We DO NOT torture to get information out of people whether we tell them their Miranda rights or not. Even if he is questioned before or after being "read his rights" he still has the right to remain silent.
Posted by: Chris | April 20, 2013 at 04:04 PM