04/25/2013 08:04 EDT | Updated 06/25/2013 05:12 EDT

You Have the Right Not To Read Dzhokhar His Rights -- But Don't Complain Later


According to the Boston Globe, Boston bombing suspect Dzhokhar Tsarnaev's confessions to law enforcement officials came before he was read his constitutional rights. "Tsarnaev made his admissions to FBI agents who interviewed him at Beth Israel Deaconess Medical Center, where he is being treated for multiple gunshot wounds," Kevin Cullen writes in the Globe. "He had not yet been given a Miranda warning."

The article goes on to reference police sources, who say authorities aren't concerned about Dzhokhar Tsarnaev's statements of guilt being thrown out in court, because they feel they can count on the testimony of the Tsarnaevs' alleged carjacking victim to establish the brothers' culpability:

"[T]he carjack victim has told police that Dzhokhar Tsarnaev and his older brother, Tamerlan, pointed guns at him and... Tamerlan Tsarnaev told him, 'We just killed a cop. We blew up the marathon. And now we're going to New York. Don't [expletive] with us.'"

It's great there is this strong witness testimony to fall back on at trial. It will certainly be helpful in the case against Dzhokhar Tsarnaev should Dzhokhar's own statements be deemed inadmissible (more on that in a moment).

"We just killed a cop."

"We blew up a marathon."

These are statements made by someone other than Dzhokhar as recalled by a third individual, so they're not as solid as a taped confession -- yet they're still pretty darn incriminating.

But in a case as high-profile, emotional, and important as this one is, you'd think law enforcement would want to give prosecutors more to work with than just "helpful" and "pretty darn incriminating." I mean, given the severity of the crime, shouldn't the priority have been to carefully build as bullet-proof (no pun intended) a legal case as possible? And wouldn't reading the lone surviving suspect his rights in a timely manner have been the first step in that process? I wonder if the decision will come back to haunt law enforcement when what is sure to be a heavily scrutinized trial finally does get underway. I wonder if, in the cold light of the courtroom, the choice not to give prosecutors a chance at having evidence of a legally obtained confession in their back pocket will still seem like the right one.

Yes, I do know about the public safety exception to the Miranda rule, which allows courts to admit statements from un-Mirandized suspects as evidence in certain circumstances. Essentially, this exception gives prosecutors the latitude to use such statements when police have engaged a suspect in limited questioning prior to reading him his rights in order to try to protect the public from imminent danger. I don't, however, think that's going to save authorities here. The public safety exception arises from a 1984 Supreme Court case, which dealt with a very different situation. There, an officer arrested a suspected rapist in the back of a grocery store and found that the suspect was wearing an empty shoulder holster. The officer had lost sight of the suspect in the store prior to the arrest. The obvious question on the officer's mind -- where was the weapon now?

The officer asked the suspect where the gun was.

"The gun is over there," the suspect answered, gesturing towards a box. The officer retrieved a gun from the box. Then he read the suspect his rights.

That's a very different scenario from what transpired with Dzhokhar Tsarnaev, who was not read his rights until three days after his arrest. Surely that's a stretch of the concept of "imminent." If law enforcement was worried about unexploded bombs, other parts of the plot to come (as one expects they must have been), those pressing questions could have been asked in a matter of minutes -- hours at the most. And then Dzhokhar could have been properly Mirandized, laying the groundwork for making admissible everything he would go on to say, and minimizing the expensive, tedious, and frustrating pre-trial evidentiary battles that eat up so many resources and so much patience in criminal cases. Not to mention improving the chances that a just verdict would be delivered.

It is true that past cases exist in which authorities have successfully used the public safety exception to justify the admission of statements obtained from un-Mirandized suspects even after long periods of questioning. But those cases generally involve trying to minimize a specific impending danger -- locating a particular missing gun or finding a particular potential kidnapping victim. They don't justify extended questioning about potential, unspecified threats, no matter how serious.

That is not to say that police violated Dzhokhar's rights by dilly-dallying over his Miranda warnings. As The Atlantic's Adam Goodman helpfully clarifies and reminds us in a recent article, there is no constitutional right to be Mirandized. There is merely a constitutional right not to have what you've told police -- while under arrest -- used against you in court, unless you were given your Miranda warnings first. So, there's nothing inherently evil in the route law enforcement chose with Dzhokhar. But there'd better not be a word of complaint from any of them if and when Dzhokhar's trial ends up dragging on for an eternity, and seems to be a far more complicated case for prosecutors to argue and present than it rightfully should be.

If law enforcement made a calculated decision that knowing whatever information Dzhokhar might possess was more important than being able to use that information in a legal case against him, I can respect that. But if they expected they could have it both ways -- questioning Dzhokhar without informing him of his rights, then trying to worm Dzhokhar's answers into court by blowing a public safety exception far beyond its reasonable scope, then there is a problem. A problem I sincerely hope a court will be quick to point out. And a problem that only law enforcement can be blamed for not foreseeing.

Boston Marathon Bombing Suspects