Tsarnaev's Silence Is Not an Argument Against Reading Miranda Rights

According to second-hand reports from officials, Tsarnaev stopped speaking with investigators after being read his Miranda rights. But the reading of the rights is largely a procedural issue. Reminding the accused of their right to remain silent is essential.

Monday morning, by a suspect's bedside in a Boston hospital, U.S. District Court Judge Marianne Bowler formally charged Dzhokhar Tsarnaev with federal crimes and read him his Miranda rights. At that point, according to second-hand reports from officials, Tsarnaev stopped speaking with investigators — a claim quickly seized upon by those who felt the alleged bomber shouldn't be read his rights at all.

Miranda rights have become an unexpected fulcrum for arguments over civil liberties and terror. But the reading of the rights is a procedural issue, not an actual conference of rights. Tsarnaev had the right to remain silent from the moment he exited that Watertown boat. The point at which he chose to exercise that right is relevant almost solely to the courts. Reminding the accused of their right to remain silent is an essential part of receiving a fair trial.

In 1963, Ernesto Miranda, right, a laborer with a history of arrests on various charges, was arrested for rape in Phoenix. After being interrogated for two hours, Miranda confessed. When he went to trial, Miranda was convicted, despite his court-appointed attorney arguing that his client had never been informed of his right to remain silent (under the Fifth Amendment) or to have an attorney present during his interactions with the police (under the Sixth). Two years later, the Supreme Court agreed, arguing that testimony from suspects that hadn't been informed of those rights should not be admissible in court, with a few, largely procedural exceptions.

The "Miranda rights" that we're now familiar with from cop shows resulted from the Court's decision. The point is not to confer on a suspect a sudden, emergent right to remain silent. It is, rather, to ensure that anyone facing the duress of law enforcement interrogation — deserved or not — at least understands (or remembers) his basic rights under the Constitution. No American citizen, ever, has to say a thing to the police if arrested; everyone has the right not to "be a witness against himself," as the Fifth Amendment articulates. If someone can reasonably argue he didn't know that right existed, the Supreme Court says that self-incrimination cannot be used.

In 1984, the Court crafted an exception. In cases where public safety was at risk — where, in other words, the police need information urgently to preserve safety — officers may question a suspect. That case stemmed from the arrest of a suspect who was asked where his firearm was hidden. He told the police prior to hearing his rights, but the Court allowed the testimony to be used. The FBI's website clarifies its interpretation of what's called the "public safety exception":

Recent and well-publicized events, including the attempted bombing of Northwest Airlines Flight 235 near Detroit, Michigan, on December 25, 2009, and the attempted bombing in New York City's Times Square in May 2010, highlight the importance of this exception. Those current events, occurring in a time of heightened vigilance against terrorist acts, place a spotlight on this law enforcement tool, which, although 26 years old, may play a vital role in protecting public safety while also permitting statements obtained under this exception to be used as evidence in a criminal prosecution. In brief, and as discussed in this article, police officers confronting situations that create a danger to themselves or others may ask questions designed to neutralize the threat without first providing a warning of rights.

After Tsarnaev's arrest on Friday, U.S. Attorney Carmen Ortiz indicated that the government was invoking that exception to question the suspect. It fits with the Obama Administration's attitude toward the exception. In 2010, it released a memo arguing, as described by The Times, that "the 'magnitude and complexity' of the terrorist threat justified 'a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.'" This decision, generally seen as an expansion of the application of the rule, has not been tested in court.

According to authorities, the Friday-Monday period of the last week went something like this. On Friday, Tsarnaev was taken into custody. Over the weekend, he was questioned about the bombings and reportedly indicated that he and his brother acted alone. On Monday morning, Judge Bowler arrived and read Tsarnaev his rights, then the charges against him. At that point, according to the Associated Press, which cites "four officials of both political parties who were briefed on the interrogation," the bombing suspect "immediately stopped talking." Fox News reports that the FBI was surprised Bowler arrived when she did.

[S]ources say there was confusion about Bowler's timing, with some voicing concerns that investigators were not given enough time to question Dzhokhar under the "public safety exception" invoked by the Justice Department.

Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators' questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.

At Fox Nation, the Breitbartian arm of the news conglomerate, the headline was more direct: "Boston Bomber Read His Miranda Rights, Immediately Clams Up."

It's worth noting that these reports — like other preliminary details trickling out from law enforcement — could be incorrect. Not to mention that Tsarnaev's physical state over the weekend was questionable. (He is now listen in "fair" condition at Boston's Beth Israel Deaconess Medical Center.) When Bowler, the judge, arrived at the hospital Monday morning, the doctor who was present asked Tsarnaev to affirm that he was alert and able to answer questions. The suspect was, after all, in a hospital, following surgery for gunshot wounds and the administration of sedatives.

It's also worth noting that the leaked reports are self-contradictory. The public safety exception is meant to apply while authorities resolve any question about whether or not there is an imminent threat to public safety. If earlier reports are correct, investigators had already determined from the suspect that there wasn't such a threat, that he had no connection to a broader network planning more attacks. It's hard to see how one could make the case for continuing the public safety exception at that point.

The government apparently has videotape placing Tsarnaev at the scene of the second bomb blast. According to the criminal complaint against him, they found the ballcap he was wearing at his house. There is a great deal of evidence linking him to the bombing and the later shootout in Watertown. So the odds are very good that, regardless of any admissions he made, he will be found guilty of the crimes. Had he invoked his right to remain silent from the moment he left the boat until the moment that verdict was read, it's hard to see how much of anything would have changed. That he may have invoked that right after being reminded of it won't change that evidence either — nor should it suggest that reading those rights to the accused is in some way a bad thing.

Ernesto Miranda was accused of rape and convicted based on a confession that was ultimately ruled invalid by the Court. Then he was retried — and once again convicted.