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The Public Safety Exception, Another Look

Kent is correct in noting that there is no freestanding requirement to give Miranda warnings.  The authorities only need give them if they want to use the ensuing statements in a criminal prosecution.

But that's not the end of the story.  It's a risky thing for prosecutors to think they already have enough evidence to take a pass on the admissibility of the defendant's statements.  It is therefore a serious question whether, in a terrorist case, where there may very well be a bomb or a bomber still out there waiting to strike, the warnings (essentially, an invitation to clam up) should be given at the outset of interrogation  --  which is the necessary road to admissibility  --  or withheld  --  which is the more likely road to getting needed intelligence but a serious obstacle to admissibility.

Eric Holder has attempted to finesse this question, citing the Quarles "emergency exception" to Miranda.  The problem is that, under the 2000 decision in Dickerson and DOJ's perverse position in that case, the political branches have no authority to craft on on their own or expand an exception to Miranda.  The Department there agreed with the defendant  that Miranda's exclusionary rule was, in effect, a component of the Fifth Amendment. What this means is that, if the Department ever wants to use the bomber's unMirandized statements in a prosecution, it is going to have to unravel the mess it did everything it could to create by its stance in Dickerson.  It's too big a gamble for the Department to bet that a cautious Court will be willing to extend the Quarles unwarned interrogation window beyond a very few minutes after the suspect's capture.

Not to fear.  In the context of the Times Square bomber about three years ago, I gave DOJ some help.

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