Miranda’s Public Safety Exception: How It Does and Does Not Affect the Evidence Against the Boston Marathon Bombing Suspect

As Americans are still reeling from the recent Boston Marathon bombing, a debate is brewing over whether the surviving suspect, Dzhokhar Tsarnaev, should have been read his Miranda rights. On Friday, April 19, a mere five days after the bombing, Emily Bazelon opined on Slate that “anyone who worries about the police railroading suspects” should be alarmed that the FBI publicly opted not to read the suspect his right to silence or his right to an attorney. On the blog Balkinization, professors Jason Mazzone and Sandy Levinson engaged in a heated discussion as to the proper interpretation of the Supreme Court’s decision in Miranda.

Some argue, as does Professor Mazzone, that Miranda serves only to provide a procedural safeguard against the unconstitutional use of a criminal defendant’s own testimony as evidence against him. In this view, the exclusionary rule—which requires the exclusion from evidence of any testimony obtained from a person in police custody prior to the reading of his or her constitutional rights—is the end in itself. Thus, if the government does not intend to use at trial any information attained from questioning a criminal defendant, then there is no need to inform him of his constitutional rights. In light of the existing (admissible) evidence against Tsarnaev that the government already has, the FBI’s decision not to inform Tsarnaev of his constitutional rights seems likely not to affect the strength of its case against him. That is, any evidence obtained from interrogation would be in excess of the amount of evidence the government believes is needed to convict him.

On the other hand, some argue that Miranda serves a greater purpose than a mere threshold for the evidentiary exclusionary rule. According to Professor Levinson, the Supreme Court’s decision in Miranda “is predicated on the notion that the Constitution, and the values of dignity that it protects even for the lowest among us, requires that criminal defendants, upon being arrested, be informed of their constitutional rights.” In this view, the end—the exclusion of testimony obtained without advising a defendant of his rights—is not merely an end in itself, but the penalty for a violation of substantive rights. Professor Levinson draws a parallel to condoning a corporation for willfully (or even negligently) violating an individual’s rights simply because it can afford the penalty for violating them.

In this column I describe the background of the seminal case Miranda v. Arizona and the differing interpretations of the Supreme Court’s holding. I then describe the so-called “public safety” exception. Finally, I consider whether the exception plays a significant role in the imminent trial of suspected bomber Dzhokhar Tsarnaev and conclude that in light of the purportedly great weight of evidence against him, the FBI’s decision to rely on the exception likely will have no effect on the outcome. However, I caution that the public’s understanding of the exception should be more precise than the authorities’ description of it.

The Landmark Case of Miranda v. Arizona

In the landmark case Miranda v. Arizona, the Supreme Court held that statements made by a person to police while in custody are admissible in a criminal trial only if the defendant (1) was informed of the right against self-incrimination prior to interrogation, (2) was informed of the right to consult with an attorney before and during questioning, and (3) understood these rights and voluntarily waived them.

In that case, defendant Ernesto Miranda was arrested based on circumstantial evidence linking him to a kidnapping and rape of a minor child. After two hours of interrogation by police officers, Miranda signed a confession to the rape charge. Miranda was never informed of his right to counsel, and he was not advised of his right to remain silent. At trial, Miranda’s attorney objected to the admission of his confession as evidence on the grounds that it was not truly voluntary. The objection was overruled, and based on this confession and other evidence, Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years imprisonment on each charge. The Arizona Supreme Court affirmed the trial court’s evidentiary decision to admit the confession. The Supreme Court granted certiorari, and overturned Miranda’s conviction.

A 5-4 majority of the Court held that a “person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”

The Public Safety Exception

In the case of the interrogation and anticipated trial of suspected bomber Dzhokhar Tsarnaev, law enforcement has publicly opted not to give Tsarnaev his Miranda warnings, citing the “public safety” exception.

This exception originates from the Supreme Court’s decision in New York v. Quarles, in which the Supreme Court held that a suspect’s testimony as to the location of a gun was admissible evidence because it presented “a situation where concern for public safety [was] paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.”

Thus under Quarles, a defendant’s testimony during questioning must not be “actually compelled by police conduct which overcame his will to resist,” and instead must involve a situation “in which police officers ask questions reasonably prompted by a concern for the public safety.”

In 2010, the FBI disseminated a memorandum broadly interpreting the public safety exception in cases of terrorism cases, opining that terrorist threats justified “a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.”

However, the exception is best characterized not as an exception to Miranda, but an exception to the rules of evidence. That is, a court can choose not to apply the exclusionary rule when circumstances indicate that custodial interrogation was meant to serve an immediate public safety need. That does not mean that police may interrogate a person for the purpose of gathering incriminating information when they perceive that doing so will serve public safety. Indeed, police officers adept at interrogation often can obtain voluntary confessions even after informing an arrestee of his Miranda rights.

Thus, when public officials declare that agents will interrogate Tsarnaev without first informing him of his constitutional rights, they are expecting a court to admit any resulting evidence under this public safety exception. Based on the evidence the FBI purports to have, however, the prosecutors will not need any testimony from Tsarnaev to convict him of the crimes for which he is likely to be charged. If law enforcement does not have the mountain of evidence, however, the risk of relying on the public safety exception carries much risk with little reward. Although Slate writer Emily Bazelon is appropriately concerned that law enforcement’s willful disregard of the suspect’s Miranda right to know and understand his constitutional rights could potentially lead to widespread abuse, I believe she fails to consider that in this particular case, the conflation of an evidentiary exception with an exception to constitutional due process results in the same outcome.

If, however, the government made a strategic decision based on an assumption that it does not need any additional information to convict Tsarnaev, the possibility of  abuse is much higher. The government could potentially interrogate Tsarnaev about matters beyond the scope of the public safety exception without any intent to proffer any information obtained as evidence at a trial. The duration of  interrogations before Tsarnaev is read his rights (if ever) will be telling on this matter.

While it is important that the media and the public understand that the public safety exception should guide courts, not law enforcement, it is equally important that law enforcement officers understand the same. The public safety exception is not a carte blanche for law enforcement officers to cite public safety in disregarding arrestees’ constitutional rights; rather, it is a means by which courts may acknowledge (and not penalize) that certain specific lines of questioning were done with the good-faith intent of preserving public safety.