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A Clueless "Expert" on Tsarnaev and Miranda

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Astonishing.  Dean Erwin Chemerinsky of UC Irvine Law writes an entire article in NLJ on the subject of what the law "requires" in terms of Miranda and the Tsarnaev interrogation, yet he seems to be entirely unaware of a critical distinction and does not mention at all the primary Supreme Court case on the point.  He says the questioning of Dzhokhar Tsarnaev for hours without being Mirandized is "disturbing for what this says as to [the Justice Department's] view of the Constitution."  At the end of the article, he writes, "But the Constitution is not a luxury to be indulged until the ends justify other means. The Fourth, Fifth and Sixth Amendment rights of all criminal defendants must be obeyed, no matter how heinous the crime and regardless of whether it is labeled an act of terrorism. The Bush administration repeatedly forgot this, and it is a shame that in treating Tsarnaev the Obama administration did, too."

There is a distinction between the law requiring someone to do something as an affirmative obligation and requiring the same act as a mere condition to something else.  Chemerinsky writes, "The law is clear that when a suspect is taken into custody, he or she must be given Miranda warnings, and all questioning must cease when the suspect requests a lawyer. Any statements gained in violation of these requirements must be suppressed and cannot be introduced as evidence."  The second statement is true, with some important exceptions, but it does not follow that failure to Mirandize is a violation of the Constitution by itself.
The Supreme Court settled this 10 years ago in Chavez v. Martinez, 538 U.S. 760 (2003).  Questioning an arrestee without giving Miranda warnings is not, by itself, a violation of the Constitution, and the arrestee cannot sue for it under 42 U.S.C. 1983.  (Brutality in extracting involuntary statements would be actionable, but that is a different issue.)  The law does not require, as an affirmative obligation, either the giving of warnings or ceasing when the arrestee asks for a lawyer.  It only requires those things as a condition to admissibility of the answers.

The Administration has not ignored the Constitution in this matter.  It apparently made a judgment call that the importance of getting information from Tsarnaev for other reasons outweighed the likelihood that the statements would not be admissible at his trial.  That was a valid judgment to make.

1 Comment

Excellent point, big difference between admissibility and ignoring the constitution.

I'm hardly a fervent conservative, but Chemerinsky might be to the left of Hugo Chavez.

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