DOJ: No Miranda rights

[Quantum Windbag]

You are more or less on track.

You give Miranda warnings to a suspect being subjected to custodial interrogation (that is, questioning while he is in custody) to allow the prosecution to USE his statements as evidence against him at his pending criminal trial. No Mirandas given yields no use of his statements against him at trial (on the government's case in chief at least).

But if the questions you wish to ask him are NOT motivated by a desire to get him to implicate himself but are instead motivated by a desire to find out how much of existing threat to the public is still in effect, then there would be NO LOGICAL REASON on the face of God's green Earth to tell him he has a 'right to remain silent.'

So, you choose NOT to give him his Miranda warnings even though he's in custody. You get him to speak and speak as much as you can. In short, you do what you can to protect people and maybe save lives and prevent other acts of terrorism. And if the "cost" of doing so is the loss of the use of his words against him at trial, so be it.

The courts have actually ruled that it is fine to question someone, get a bunch of incriminating statements, then read him a warning and try to get him to repeat what he already said. I don't particularly like that tactic, but everyone should know they have the right to remain silent if they watch any cop show ever.

Actually, if one has spoken in response to questioning NOT preceded by the Miranda warnings (when one is already in custody), and then the law enforcement gang tries to "fix" things by giving Miranda warnings, at least in NY State, that will not fly.

That still yields suppression on the theory of the "cat out of the bag."

The Courts don't allow that transparent end-run if it is established that such a ploy was attempted.

The case you seem to have in mind is: OREGON v. ELSTAD 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) where the SCOTUS said what YOU just said.

But New York State has its own Constitution and sees things differently. People v. Tanner, 30 N.Y.2d 102, 331 N.Y.S.2d 1 (1972) ("cat out of the bag theory" but note that the burden of proof lies with the defendant on that issue).

I should have been more specific. I am not familiar enough with New York to actually comment on how they do things, but some states offer more protections than the feds, NY seems to be one of them.

In federal courts, not only can they question you, and then come back and read you the warnings to try and get you to talk again, they can actually use any evidence they get from your statement against you. For example, if you tell them where you buried the body, they can dig it up and use it to prove you killed whoever it was, even if you later refuse to repeat your statement.

 

[JakeStarkey]

And now we put an end to libertarian and reactionary inanity.

Boston mayor says authorities may never question bomb suspect



(Reuters) - Boston Mayor Tom Menino said on Sunday authorities may never be able to question the Boston Marathon bombing suspect, who lies seriously injured and unable to speak after eluding police for 24 hours.

Dzhokhar Tsarnaev, 19, was in "very serious" condition at a Boston hospital after being captured Friday night, Menino told ABC's "This Week" program.

"And we don't know if we'll ever be able to question the individual," he said without elaborating.

Tsarnaev's brother, Tamerlan, 26, was killed in a firefight with police earlier on Friday as officers hunted them for the twin blasts on Monday that killed three and injured 176.

U.S. Senator Dan Coats, a member of the Intelligence Committee, said it was questionable whether Tsarnaev would be able to talk again.

"The information that we have is that there was a shot to the throat," Coats told the ABC program.

"It doesn't mean he can't communicate, but right now I think he's in a condition where we can't get any information from him at all," said Coats, an Indiana Republican.

(Reporting by Doina Chiacu and Susan Cornwell; Editing by Vicki Allen and Philip Barbara)

 

[SFC Ollie]

Heard skimming the news that he has answered some questions writing down basic answers......

 

[JakeStarkey]

Yes, I read he can write answers.

 

[PratchettFan]

ABC news just now


ON EDIT: (took me till 9:43 to get link up)

Boston Bomb Suspect Captured Alive in Backyard Boat - ABC News

A senior Justice Department official told ABC News that federal law enforcement officials are invoking the public safety exception to the Miranda rights, so that Tsarnaev will be questioned immediately without having Miranda rights issued to him.

The federal government's high value detainee interrogation group will be responsible for questioning him.

The Miranda exemption exists to protect the public safety from another attack, according to the official.

I don't know if the exception will fly, but they only have to Mirandize someone if they are going to use that testimony in the prosecution. If they think they have enough evidence to convict without the testimony, then they don't have to Mirandize. They may feel the information they gather is worth that risk. In this case, I don't think it is much of a risk.

 

[Truthmatters]

he has a throat injury and cant speak

 

[Desperado]

Govt invoking public safety exception which seems to indicate that the government feels that there must be more terrorist out there since one bomber brother is dead and the other is under guard in the hospital. Why else would they invoke this exception?
https://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

 

[SFC Ollie]

Law enforcement sources tell ABC News, Boston Marathon bombing suspect Dzhokhar Tsarnaev is awake and responding to questions. Authorities say Tsarnaev is reportedly sporadic in his written responses to questions.

Federal agents have started questioning him about possible accomplices or other explosive devices.

Read more: FBI questions Boston bombing suspect Dzhokhar Tsarnaev

 

[AmyNation]

I've heard that some are looking to have him declared an enemy combatant, which is ridiculous. It's worrying to see how fast our government can circumvent our rights as Americans. While I want the bomber to talk, I don't want to sacrifice our justice system to do so.

 

[SFC Ollie]

I've heard that some are looking to have him declared an enemy combatant, which is ridiculous. It's worrying to see how fast our government can circumvent our rights as Americans. While I want the bomber to talk, I don't want to sacrifice our justice system to do so.

Well, they are wrong in this.

He is an American Citizen.

He committed his crimes on American soil.

He should and will be tried in Federal Court.

Death Penalty will be an option and probably the sentence.....

 

[Katzndogz]

ABC news just now


ON EDIT: (took me till 9:43 to get link up)

Boston Bomb Suspect Captured Alive in Backyard Boat - ABC News

A senior Justice Department official told ABC News that federal law enforcement officials are invoking the public safety exception to the Miranda rights, so that Tsarnaev will be questioned immediately without having Miranda rights issued to him.

The federal government's high value detainee interrogation group will be responsible for questioning him.

The Miranda exemption exists to protect the public safety from another attack, according to the official.

I don't know if the exception will fly, but they only have to Mirandize someone if they are going to use that testimony in the prosecution. If they think they have enough evidence to convict without the testimony, then they don't have to Mirandize. They may feel the information they gather is worth that risk. In this case, I don't think it is much of a risk.

True. They never have to tell him he has the right to remain silent. But they still have to tell him that he has the right to an attorney. According to the peculiarities of our law, he doesn't get an attorney until he asks for one. There could be 50 of them waiting just outside the door, but until he lawyers up, they can't come in. The authorities have to tell him that he has the right to an attorney, then he has to give it a yea or nay.

 

[PratchettFan]

Govt invoking public safety exception which seems to indicate that the government feels that there must be more terrorist out there since one bomber brother is dead and the other is under guard in the hospital. Why else would they invoke this exception?
https://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

Not really. It means they want to find out if anyone else was involved. Which is due diligence.

 

[Katzndogz]

The public safety exception arose out of the Quarels case. A woman was raped at gunpoint. They caught the guy who had an empty shoulder holster but no gun. The police asked him where the gun was and he told them. The defense sought to have the gun tossed because Quarles wasn't mirandized. The court found a public safety exception because finding the gun was more important, at that moment, that the right to remain silent. That's the public safety exception. Who was involved? Are there more bombs? Those are more important than the right to remain silent or the right to an attorney at that point.
The FBI considers the exception to be a “powerful tool with a modern application for law enforcement,” wrote Carl Benoit, a legal instructor at the FBI Academy in a law enforcement bulletin. He wrote:

When police officers are confronted by a concern for public safety, Miranda warnings need not be provided prior to asking questions directed at neutralizing an imminent threat, and voluntary statements made in response to such narrowly tailored questions can be admitted at trial.

The circumstances with Mr. Tsarnaev are obviously very different. But Mr. Wittes said the Quarles case offers some flexibility, particularly since the suspect could be carrying a bomb.

Says Mr. Wittes: “You do have under ‘Quarles’ some period of time at least to make sure there aren’t other accomplices running around, and to make sure that if there is a foreign connection, that this isn’t part of some unfolding plot of attacks.”

The ?Public Safety? Exception - Law Blog - WSJ

 

[Desperado]

Govt invoking public safety exception which seems to indicate that the government feels that there must be more terrorist out there since one bomber brother is dead and the other is under guard in the hospital. Why else would they invoke this exception?
https://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

Not really. It means they want to find out if anyone else was involved. Which is due diligence.

Now isn't that what I just said?
seems to indicate that the government feels that there must be more terrorist out there

 

[hortysir]

I've heard that some are looking to have him declared an enemy combatant, which is ridiculous. It's worrying to see how fast our government can circumvent our rights as Americans. While I want the bomber to talk, I don't want to sacrifice our justice system to do so.

Numerous "enemy combatants" have spent time at GTMO where we gathered as much information as possible, then Mirandized at stood before a federal court and were convicted.

We can do both.

 

[Zoom-boing]

In the United States the phrase "enemy combatant" was used after the September 11 attacks by the George W. Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. Thus, the term "enemy combatant" has to be read in context to determine whether it means any combatant belonging to an enemy state, whether lawful or unlawful, or if it means an alleged member of al Qaeda or of the Taliban being detained as an unlawful combatant by the United States.

https://en.wikipedia.org/wiki/Enemy_combatant

The bastard is being treated as a criminal and not an enemy combatant. If the bastard is found to be part of a larger group/sleeper cell would that change?

 

[Yurt]

I've heard that some are looking to have him declared an enemy combatant, which is ridiculous. It's worrying to see how fast our government can circumvent our rights as Americans. While I want the bomber to talk, I don't want to sacrifice our justice system to do so.

if he is working with AQ, under US law, he is an enemy combatant.

https://en.wikipedia.org/wiki/Enemy_combatant#Change_of_meaning_in_the_United_States

 

[bodecea]

ABC news just now


ON EDIT: (took me till 9:43 to get link up)

Boston Bomb Suspect Captured Alive in Backyard Boat - ABC News

A senior Justice Department official told ABC News that federal law enforcement officials are invoking the public safety exception to the Miranda rights, so that Tsarnaev will be questioned immediately without having Miranda rights issued to him.

The federal government's high value detainee interrogation group will be responsible for questioning him.

The Miranda exemption exists to protect the public safety from another attack, according to the official.

Let me ask you something. Do you think the authorities need a Mirandized statement from that kid in order to convict him?

 

[AmyNation]

US law prohibits US citizens from being tried in military commissions, and I'm not even sure it's constitutional to label an American who committed a crime against other Americans on American soil as an enemy combatant. If it was attempted, most likely it would end up in front of the Supreme Court.

 

[Yurt]

US law prohibits US citizens from being tried in military commissions, and I'm not even sure it's constitutional to label an American who committed a crime against other Americans on American soil as an enemy combatant. If it was attempted, most likely it would end up in front of the Supreme Court.

are you sure about that:

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Can The Boston Bombing Suspect Be Deemed An "Enemy Combatant?": Gothamist