Brave New World: Miranda Roundup

If you're wondering whether Dzhokhar Tsarnaev was read his Miranda rights, and whether he should have been, and what the significance is if he wasn't, here are some posts to read:

Orin Kerr explains the law.

Lawscribe elaborates from a former PD's perspective and explains why Dick Wolf is full of shit.

Lindsey Graham is a jackasss.

So is John McCain.

Some background on the Obama Administration's position.

And finally, many of these people vote.

Last 5 posts by Ken White


  1. Jeff says

    Perhaps a better comment for Kerr's post: but I don't see how there's a presentment problem. Presumably, some poor AUSAs are writing up an indictment right now under the whip of some NSD/CT people in DC. He'll get indicted in a few days. And when he's physically able, he'll be presented to the MJ for his initial appearance.

    Of course, the indictment will probably be superseded as more evidence is gathered, particularly if they want to make it capital. But I don't see how the "prolonged" medical treatment makes presentment an issue.

  2. Chris W says

    OK, I get the bit about not reading him his rights. But regardless of whether or not they've been read, he still has those rights, doesn't he? So at any point, he could clam up and refuse to speak further until he has a lawyer, and the gov't would have to honor that?

  3. Zack says

    @Chris W: He can stay silent, but they're not obligated to give him a lawyer or stop questioning him under the way they're doing it. If he messes up and responds to their interrogation, it could be admissible under a special exemption that's a legal thing. The exemption is time-limited, though, and their ability to claim it decreases as time moves on.

    Also, the 'miranda rights' thing (according to Volokh conspiracy at least) apparently only applies at all if they're concerned about his statements being admissible. If they just want to bully him into telling them where the evidence was, and don't care about admitting his statement into court, they can keep him without a lawyer as long as they want to.

  4. Chris says

    @Zack, I don't presume you meant it that way, but they don't have the right to question him as long as they want, b/c he has other rights such as a speedy trial. So yeah, they can bully him for awhile, he can ignore them, but at some point he's going to have to be given the chance to have his day in court.

  5. Ron says

    I am no lawyer.
    But, I don't think they need anything from him to convict him. There are plenty of witnesses and other evidence who saw him commit crimes and can place him at the scene of crimes.

    So fine. They didn't read him his rights. That means anything he said can't be used as evidence. Big deal. They shouldn't need his words anyhow.

    Move on folks.

  6. Ancel De Lambert says

    Goddamn it Lindsey, shut the hell up, you're making me agree with Feinstein! Do you have any idea how much that hurts? And you're making Rand look good. Do you realize how hard it is to make him look good?

  7. orvis barfley says

    man, this is good stuff.  orin kerr and lawscribe knock it out of the park.  i wonder how long one should expect to need to read this blog before one can reasonably expect to pass the bar.  assuming one should want to, of course.

    my question here is the real world effect of our having heard the miranda rights being read in dramatic productions some 30 or 40 jillion times.

    given that we are virtually to a one familiar with the reading of those rights, it isn't like we have no clue what our rights are.  i assume the decision to question sans miranda really is a matter of expediency and a desire to not remind a person that he or she may be silent, say.  chances are extremely high that tsarnaev is well familiar with his rights, whether reminded of them or not prior to his being questioned.

    i really wonder if we gain much beyond the minute saved, in practical terms.

    this said, i understand that the probability of needing statements from him in order to reach a jury decision is extremely low.  and i understand there is a fine, grey line between admissibility and non-admissibility.  i'm just wondering, in practical terms, how much we really expect to gain in information gathering by not saying those words we could all probably mumble in our breakfast cereal.

    i don't need to reiterate that i'm not an attorney or much of anything else.

  8. OngChotwI says

    In the fields I'm intimately familiar with, tv and movie presentations keep popping up with facepalmingly bad statements. And now you're claiming they do the same with their depiction of the law? Please stop.. next you'll start claiming that those shows are all make believe! :)

  9. Wick says

    If the reports that the suspect is a naturalized citizen are correct, I'd be shocked if citizenship classes didn't cover the bill of rights. Also, law enforcement types get confessions after Miranda warnings all the time.

  10. orvis barfley says

    one more thing i want to mention regarding this.  i heard a bit of an interview with someone who had spoken with tsarnaev's father.  the man was understandably relieved to know his young son was apprehended live.  i'm having trouble remembering exactly what was said, but i believe the interviewer asked him if he could speak with his son, what would he say.  the man's response was something along the lines of 'tell them anything they want to know.'

    i know this isn't information regarding miranda, but just a real world realization of what young dzhokhar may be wanting to do, anyway.  particularly if the father speaks with him and does, indeed, have that belief.

  11. orvis barfley says

    ok, ok, one more.  again nothing on topic.

    i'm pretty impressed with this family, the two sons excepted.  particularly the elder son.  given what the uncle has said and the open thanks expressed by the father for our not just bulldozing the boy and the advice he has given, they've made some bones with me, whether that matters a whit or not.

  12. Chris W says

    Orvis Barfley wonders:

    i'm just wondering, in practical terms, how much we really expect to gain in information gathering by not saying those words we could all probably mumble in our breakfast cereal.

    That's a really interesting question. I wonder if it's simply intended to add the the drama of the "security theater".

  13. Zack says

    @Chris W:

    Well, to be fair, police interrogation tactics have proven (when a lawyer ain't there) to get answers. The reliability of those answers can be frequently dubious, but they've had a couple hundred years at this point to refine their technique for getting answers out of suspects, and they can do it with all but the most hardened suspects (which, admittedly, this guy may be.)

  14. Paulie says

    I feel like it would be just a huge folly to not read him Miranda rights. Give the government an inch and they'll take a mile. Besides, this isn't some foreigner who doesn't even know what Miranda rights are. He's probably more than educated enough not to speak to anyone without it being read to him first.

  15. orvis barfley says

    they've had a couple hundred years at this point to refine their technique for getting answers

    damn.  who are these guys?

    chris w, i'm guessing it's actually something like that.  that the reading of miranda blows the tough guy stance or some such.

  16. orvis barfley says

    or maybe they feel it's suggestive that he get representation while mostly they are concerned at this point in getting usable information.

  17. AlphaCentauri says

    Actually, since the guy just passed his citizenship exam and surely knows his constitutional rights better than most US-born Americans, perhaps the strategy is, "We purposely won't read you your Miranda rights, so nothing you tell us will be admissable. We don't need you to incriminate yourself, because you spent the night shooting at cops in front of dozens of witnesses, including taking a few last shots from the boat in which you were the sole occupant. We just want you to feel free to provide the information we need, so we can be confident there are no other co-conspirators out there."

  18. James Pollock says

    When I took crim pro (from a former prosecutor) he went to great pains to point out that Miranda isn't necessary if you don't plan to use the subject's "confession" against him at trial. If all you want is names and details of other (possible) crimes, you can skip it and go directly to the interrogation.
    Yes, he has a right to be silent, and probably knows it at a rational level. But when you disappear into the interrogation room, rational gets replaced by vicsceral. Adrenaline does that.

  19. C. S. P. Schofield says

    I realize that this is a long shot; the cliche "I am a soldier in the fight against/for (Imperialism, Social Justice, what-have-you)" speech almost certainly doesn't happen in real life as often as it does in bad Hollywood movies. But IF he makes such a speech, I sure would like to take him at his word……

    If only to kill that particular cliche dead.

  20. Dan Weber says

    Isn't there already a huge mountain of evidence against this guy? While I can see why the government might try to reserve the right to use some statements he makes against him, if a prosecutor can't put this guy away for a long long time based on what the FBI supposedly already has on him, that prosecutor should be fired.

  21. JoeT says

    Would anybody who's familiar w/the law (Beuller, Beuller?) care to spell out Kerr's comment (update #2) about the time limit depending on rule 5 of the FRCrP referencing Corley v. US ('09)?

  22. Stephen says

    The public safety exception to Miranda is a real thing, and makes sense. That's not what bothers me.

    What bothers me is, when jackass right-wingnuts like Graham and McCain start talking about it, we all know what they really mean.

    And what they really mean should bother anyone that still believes in the Constitution and its relevance.

  23. says

    I concur with your jackass labels for Graham and McCain. Please add President O'Bumbles as an honorary member to that list. Voting "Present" on every issue of our times should grant jackass privileges to anyone who consistently employs it. At least Graham and McCain abide by a consistent world view which is occasionally way off base. O'Bumbles has only one consistency. Not being consistent.

  24. zaq.hack says

    Is this clown a citizen? I was not under the impression he was. If so, he should get Miranda. It's literally the least we can do. If he's not a citizen, I don't give a rip: Take him out back and cap him, already.

  25. says

    My favorite insipid twitter argument with an LEO yesterday:

    "@Domelights: @FishtownLawyer My POINT is that YOUR opinion (or mine) aren't the law. The Miranda decision ITSELF is "bad law" in my book."


    "@Domelights: @FishtownLawyer Please! Miranda just added a step–& TONS of related expensive litigation–to the interrogation process. NOT a Bright Line."

    Oh joy.

  26. Lucy says

    He IS a citizen. This morning at my family's house was CNN blasting in one room, another media channel blasting from the bedroom tv, and a relative escalating about Muslims.

    The deal is, this guy's entitled to due process no matter what anybody thinks about it. Good Lord I had forgotten how mind-numbing cable can be.

  27. Lucy says


    I was referring to the alternative of taking him out to the yard and capping him. I didn't clarify that. My bad.

  28. zaq.hack says

    Due process is different for a citizen, though. If he was not a US citizen, I'd support due process via military tribunal or other process. A non-citizen committing an act of terrorism on US soil should not be entitled to all the rights our court system affords.

    As a citizen, though, he has rights. Period. It is not negotiable. We have successfully prosecuted mass-murdering-madmen before, and this will be no exception.

  29. AlphaCentauri says

    Okay, I think the point is officially moot. The guy ran his own brother down with a car and dragged the body along with him, apparently to make sure he wouldn't live to provide information. He knows he has a right not to talk.

  30. Jerryskids says

    My question is to why I haven't seen very much about what this mant has said so far under interrogation. From everything I have read concerning the opinion that the War On Terror allows for suspending the Constitution wholesale and permantly rather than piecemeal and temporarily, I can only assume that he has at least confessed that not only did he commit the bombing but that he did so as an act of jihad against the United States. Right? I mean, it's not as if there is any possibility that they have the wrong man in custody or that the bombing was planned as a diversionary tactic to disguise their real intent of robbing a bank or something? We know for a fact that this guy did it and that it was an act of war against the United States? Then by all means, dispense with the Constitution. If the government accuses you of something, you should be taken out back and executed. That is, after all, a rather time-honored tradition amongst governments.

  31. That Anonymous Coward says

    @Leo – OHAI Leo! And yes, I am like a bad penny.

    Graham and McCain make me feel ill. Everything they do is just a photo-op to curry favor with the terrified xenophobic demographic they have been working on cultivating.
    Every word they utter is about how horrible everyone else is and only they know the right way… One has to question their wisdom given the state of the world today.

    Imagine if they had spent as much time calling for this and that actually sitting down and creating laws that actually worked rather than behaving like children who throw temper tantrums when they can't have everything their way.

    I grow weary of these children unable to think beyond the next soundbite and stupid law to score points but solve nothing.

  32. Basil Forthrightly says

    @jerryskids you haven't heard anything because he hasn't said anything.

    He was shot twice and untreated for 20 hours; one of the shots was to the neck and reportedly damaged his throat (although I'll take that media report with a grain of salt). Also, since he's gotten to the hospital, he's been sedated and had a tube down his throat (that info has been echoed by law enforcement and politicians, so is probably true).

    In other words, he hasn't said anything yet because he can't.

  33. Extravaganza says

    Zaq.haq: why should non-citizens not be entitled to all the rights of the US court system? I struggle to see this argument as anything other than "let's do everything we can to deny this person a fair trial". Because that's what those rights exist for. Take them away, invent some kind of special military court with no precedent or constitutional basis, and you are on seriously shaky ground.

    Trying to make out that terrorism is somehow special enough to justify special rules is a terrible idea. At best, it romanticises a brutal crime. At worst, it establishes a precedent for diluting the rule of law.

    Terrorism is not something so special and unique as to require special courts. It's just a particularly cowardly and indiscriminate form of murder. We have perfectly adequate laws against murder already. We have courts that can try this man fairly, prosecutors who can establish his guilt beyond reasonable doubt, defenders who can ensure the state doesn't abuse its power, and judges who can hand down just punishments. There's no place for the military here.

  34. zaq.hack says

    "Take them away, invent some kind of special military court with no precedent or constitutional basis"

    Both of those things are untrue. Just sayin'. Loads of precedent.

    "Trying to make out that terrorism is somehow special enough to justify special rules is a terrible idea."

    Not doing that. Just saying that if he is a FOREIGN NATIONAL committing an ACT OF WAR on our soil, a different set of rules apply. There ARE rules – it isn't lawlessness, and my flip answer above of "taken out back and shot" simply indicates that it is not as subject to media circus as our court system. But we are signatories to certain international standards of treatment, and those would still apply.

    As a citizen, he and I are both party to the social contract of the US Government (for better and for worse, in sickness and in health, etc., etc.). Citizenship has meaning: Rights of citizens must be protected from Timothy McVeigh to Barack Obama and all the other scum on the bottom of the barrel, too.

  35. En Passant says

    zaq.hack wrote Apr 21, 2013 @4:34 pm:

    Citizenship has meaning: Rights of citizens must be protected from Timothy McVeigh to Barack Obama and all the other scum on the bottom of the barrel, too.

    Don't worry. That dedicated and honorable protector of constitutional rights, and epitome of human decency Carmen Ortiz, US Attorney for Massachusetts, is on the case. She's even been expounding on the subject on news programs.

    Ms. Ortiz will ensure that this defendant will be treated at least as fairly and honestly as other cases she has prosecuted:

    — GlaxoSmithKline general counsel Lauren Stevens (case dismissed by the court, stating "it would be a miscarriage of justice to permit this case to go to the jury. "), and

    — Donald Gonczy (Ortiz admonished by the court for violating a plea agreement), and

    — Aaron Swartz ('nuf said), and

    — the Caswell Motel forfeiture case (dismissed by the court, noting "stretching the evidence" and engaging in "gross exaggeration").

    As the great Johnny Mercer wrote in the 1950s, the country's in the very best of hands.

  36. Clownius says


    USA Land of the Brave and Home of the Free….

    Unless of course we have a reason not to like you and then the rule book should go out the Window right?

    Sorry but thats always amused me about certain Americans. Why they feel their rights should only apply to Citizen's. As an Australian i let our politicians know when they step over the line. One area i regularly send them a message on is Refugee rights. Any time it looks like they are trying to deny them the same rights any Australian would have.

    I firmly believe the laws of any country should apply evenly to both citizens and visitors to a country. No other method can truly be called justice.

  37. Levi says

    @Zack, but wouldn't it be true that if he says "I am invoking my right to remain silent" or "I am invoking my right to counsel," they would have to quit asking him?

  38. James Pollock says

    " if he is a FOREIGN NATIONAL committing an ACT OF WAR on our soil, a different set of rules apply."
    Blowing things up, while certainly not the act of a proper guest, is not an act of war unless it is undertaken by an agent of a foreign sovereign. Blowing things up as a private enterprise is exactly the same for FOREIGN NATIONALs and citizens, a criminal act; the only difference is the availability of removal following the criminal proceedings. The Constitution requires due process for all persons, not just all citizens, before deprivation of life, liberty, or property.