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So Much for the Public Safety Exception

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Kent and I have noted, here and here, that Miranda does not create a freestanding right to be warned before custodial questioning.  Miranda is an admissibility case; if a defendant's custodial statement is to be admitted, it must be preceded by the warnings.

The theory of the exception to Miranda created in Quarles was that the authorities may legitimately decline to, in effect, invite the suspect to clam up about information immediately vital to public safety.  They may delay the warnings until after (an undefined) reasonable time in which they will have had the chance to obtain such information.

Someone needs to tell this to federal magistrate judge Marianne Bowler, who decided on her own to give the warnings before the interrogators were finished their job.

The surviving bomber of course immediately clammed up when the warnings were given.  Who knows what information we will now never get?

6 Comments

What about FRCP 5(d)(1)?

It is one thing to inform the defendant that he "has a right not to make a statement" AT HIS INITIAL APPEARANCE (which is all FRCP 5(d)(1) covers or is intended to cover), and another to advise him, a la' Miranda, that he has a general "right to remain silent" in response to agent questioning.

Once the criminal prosecution has actually started it seems pretty far-fetched to expect a Judge to not inform the defendant of his constitutional rights.

I'm not sure what the Judge was supposed to do - she was required by FRCP 5 to inform him of his right to remain silent and his right to an attorney. If you are suggesting that she should somehow have fudged this by suggesting that somehow he was still obligated to talk to law enforcement...well, that would be a lie.

The Judge is not a branch of law enforcement. The Judge did what the Judge does in every criminal case - informed the defendant of the nature of the charges against him and of his rights under the constitution. It's bizarre that this is even controversial.

The text of Rule 5(d)(1), which governs only what must happen at the initial appearance, states that the judge must inform the defendant that he "has a right not to make a statement." Fine. If he doesn't want to make a statement during the initial appearance, I have no problem.

Rule 5 does not, however, state or require the judge to state that the defendant has a general right of silence, and it is the whole point of Quarles to preserve the authorities' opportunity to elicit information from the suspect reasonably needed to protect from imminent threats to public safety.

There is no reason to adopt a broad and non-literal reading of Rule 5 to cut back on what the Court sought to preserve.

If you don't want to know about the bombs they planned to plant in Times Square (as Mr. Nicey apparently admitted before the magistrate stepped in), that's fine. If you don't want to know about the ones they could have planted earlier in other places in Boston, that's fine too. But there is no sound reason the rest of us need to get blown up to accommodate that very odd desire.

Ya lost a little bit of credibility on this one, Bill.

I see where you are coming from, but the idea that a Federal defendant, appearing before a Federal Judge for the first time, is not going to be informed of his constitutional rights is pretty far out there, even for you. It's done in every single case that I am aware of. And it doesn't appear that the Judge "went rogue", either. She told the prosecutor and the FBI that she was planning on doing it and they did not object or request a delay, that I could see.

So she did what is done in every case, after telling everyone that she planned on doing it and nobody said anything.

Would you believe I don't worry about my "credibility" with people with whom I had none to start?

"It's done in every single case that I am aware of. And it doesn't appear that the Judge 'went rogue', either. She told the prosecutor and the FBI that she was planning on doing it and they did not object or request a delay, that I could see."

Kinda depends on exactly what she said to them. She could easily have said, "You know that under Rule 5, he has rights, and I'm going to advise him of his rights." They would have understood that to mean his rights to make no statement and to have a lawyer AT THE RULE 5 PROCEEDING.

Of course I don't know that that's what she said, or that it's what they understood her to mean. You don't know either. People speak imprecisely all the time, and are understood by their listeners to mean something slightly different from what they actually mean. Usually, this makes very little difference. But usually isn't always.

It could also be that the government people she spoke with to arrange the bedside appearance were different from the interrogation team itself, and less precise and/or invested in the intelligence/security angle than in the prosecution angle.

To fail to understand that, at a distance, we don't know what turn out to be important details of who said what to whom is to, ummmmmm, lose credibility.

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