So, the Boston bombing suspect is in custody. The news and social media and politicians and pundits are all abuzz about whether he should be given a Miranda warning prior to any questioning. "Public safety exception" is being said a lot. As someone who uses this whole Miranda concept on a daily basis, I have a pretty good understanding of it. Sadly, it appears most people do not. So, let's discuss.
Q. When is a person entitled to a Miranda warning?
A. When they are subject to a custodial interrogation. That requires that the person is both 1) in custody and 2) being questioned. Custody isn't just formally being arrested. A person can be in custody for purposes of Miranda without being told they are under arrest. Going into the police station voluntarily to answer questions or give a statement is not considered being in custody, so don't do it & don't be surprised if they don't give you a Miranda warning if you do.
Also, a person must actually be asked questions by officers. If the cop arrests someone & asks no questions, there is no need for Miranda. Despite what is on TV, the police are not required to recite your rights to you as they are slapping on the cuffs. If you start rambling on in the back of the squad without being asked any questions, you're SOL. All that can be used against you. So, shut up.
Q. Do the police HAVE to read someone their rights before questioning them?
A. Technically, no. However, if the police choose not to inform someone of their rights, then the statements made by that person cannot be used against them. If the police decide that they don't want to bother with informing someone of their rights, then they are deciding they don't care that nothing said can be used as evidence. Since that sucks for the police, prosecutors, etc., the police will usually inform the suspect so when the suspect admits to everything, it can be used as evidence.
Q. Do illegal immigrants and/or non-citizens have the same rights as citizens when they are taken into custody in America?
A. Yes. No, there isn't any way to argue that they don't just because they aren't citizens. No. No. Don't even try to make an argument that non-citizens don't have the same protections/rights when accused of a crime as citizens because it's just not correct. They do. End of story.
Q. Everyone has heard Miranda rights being given on TV, so we all know them already. Do the police REALLY have to read them to suspects?
A. Yes. Regardless of how frequently we have all heard them, everyone in custody & questioned should be informed. Even police officers, lawyers, & judges accused of crimes.
Q. Are there times where Miranda doesn't apply but they can still use your statements against you?
A. Yes. If you aren't in custody & police ask you questions, no Miranda is needed & they can use your statements against you. If you are in custody but not questioned and just decide to run your mouth, no Miranda needed. If they are asking you routine booking questions, no Miranda needed. If they are using the public safety exception, no Miranda needed.
Q. What is the public safety exception?
A. It allows police, in a very limited number of cases, to ask questions if they reasonably believe that there is an imminent threat to public safety. Any answers given can be used against the suspect, despite the lack of a Miranda warning prior to questioning.
Q. What is an example of this exception?
A. In the case that crafted this exception, New York v. Quarles, involved a suspect arrested in a grocery some store & suspected of being armed. When arrested, he had an empty shoulder holster & police asked where the gun was located. That was the extent of the questioning. The suspect nodded & said, "Over there." Other examples may potentially include a situation where a suspect is arrested & suspected of putting a victim in a life-threatening situation with limited time to prevent them from dying, where police believe the person may have set a bomb to detonate in a few minutes & need to locate it to deactivate it, etc. The key to this exception is that the police are asking limited questions to address an imminent threat. Imminent meaning immediate or very close to immediate. In contrast, if the victim is kidnapped & location unknown but there is no reason to believe they will die shortly, it's unlikely such an exception would apply. Imminent threat to public safety is required.
Q. Does the public safety exception apply to the Boston bombing suspect?
A. Well, that depends on who you ask. Clearly, the Obama administration has determined it does. My opinion is that it does not. If it does, it doesn't apply beyond asking something like, "Are there any more bombs and if so, where?" The bombings occurred on Monday & no other bombings have been verified since that time. The police have determined that only 2 people were involved, one of whom is now dead & no longer a threat. By the time the suspect is out of the hospital & able to answer questions, even more time will have elapsed. The more time that passes, the less likely it is that this exception will apply. The exception is narrowly crafted for a reason. In my opinion, the Obama administration is stretching the exception beyond its boundaries and completely unmooring it from the purpose for the exception.
Q. But if he is read his rights, won't he remain silent?
A. Ha!!! Like that ever makes a difference. Please. I get maybe one in 1,000 cases where someone actually refuses to answer questions after being read their rights. That concern is really non-existent.
Q. He is a terrible, horrible, no good, very bad person. Why should we care if he is denied his rights?
A. "First they came for the communists, and I didn't speak out because I wasn't a communist.
Then they came for the socialists, and I didn't speak out because I wasn't a socialist.
Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist.
Then they came for the Jews, and I didn't speak out because I wasn't a Jew.
Then they came for the Catholics, and I didn't speak out because I wasn't a Catholic.
Then they came for me, and there was no one left to speak for me."
"All that is necessary for the triumph of evil is that good men do nothing."
"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
That's why. Every time we allow someone else to be denied their rights, we sacrifice a bit of our own protections. We must demand that all suspects, no matter how terrible the offenses or how egregious the acts, are afforded every single due process right. If we don't, we are allowing the government to take them from us. More than that, we are willingly giving them to the government without protest. Terrifying.