Posted by Jason Chan on Wed, Apr 24, 2013 @ 09:14 AM
Every person has the right under the United States Constitution to remain silent and not to incriminate themselves. The Fifth Amendment states,
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Essentially, the court has interpreted the 5th Amendment of the United States Constitution to require police to give a suspect his Miranda rights in most situations before asking questions. It is so engrained in our society that most people believe that a person must be given Miranda rights in every situation. If you ask most people in the street, they will be able to recite the Miranda rights verbatim. However, the police are not required to give Miranda rights in every situation. The police need to give Miranda if the statement is made under custodial interrogation. The suspect doesn’t need to be in actual handcuffs to be considered a custodial interrogation.
Now when it comes to Dzhokhar Tsarnaev, seeing that he was officially arrested and placed in handcuffs, it will be difficult to argue that it isn’t custodial interrogation. The 5th Amendment rights of a suspect are taken so seriously that only a few narrow exceptions are allowed by the courts. One such exception is known as the public safety exception. If the situation is so serious that the police need to get answers to protect the general public from an imminent immediate threat that would cause grave risk to public safety, the police may forego Miranda rights.
So in the Dzhokhar Tsarnaev Boston Marathon bombing case, the court could reason that there was as imminent immediate threat to the public safety as the police were trying to determine if there were other explosives in the city. Therefore, the authorities may question Dzhokhar Tsarnaev about the existence of other bombs or weapons they may have placed throughout the city. If Dzhokhar Tsarnaev made any statements under those circumstances, the statements may be used as incriminating evidence against him at trial. If the court rules that there was a public safety exception the court may allow the incriminating statement in even without the suspect being given his Miranda rights. At some point, when there is no longer an imminent or immediate threat to public safety, Dzhokhar Tsarnaev should be given his Miranda rights. If the court deems that there is no longer a threat, the court may suppress any statements Dzhokhar Tsarnaev makes from that point on if the police never gives him Miranda rights.
Contrary to what many people believe, (read more about this in my previous blog about Miranda rights and dismissing a case) failure to give a person Miranda rights does not lead to a dismissal of a criminal case. If the court finds that a person’s rights of self incrimination under the 5th Amendment of the US Constitution were violated, the court may suppress any statements that the suspect makes to the police. In Dzhokhar Tsarnaev case, the authorities have a lot of evidence against him. There are reports that Dzhokhar Tsarnaev admitted to the owner of the carjacked Mercedes that he was the bomber of the Boston Marathon. Seeing that the owner of the car is not the police, the owner obviously doesn’t have to give Dzhokhar Tsarnaev any Miranda rights. Therefore, his admission to the owner of the Mercedes would still be admissible regardless if his statements to the police are suppressed.
Even though admissions to the authorities are often times very useful in the prosecution of criminal cases, it is unlikely to have a significant affect ton Dzhokhar Tsarnaev’s criminal case. In the end, the US Attorney’s Office has a lot of evidence against Dzhokhar Tsarnaev and don’t need his statements to convict him on the charges.
Posted by Jason Chan on Wed, Nov 09, 2011 @ 12:56 PM
Every person in America has a Fifth Amendment right against self incrimination. Once you are arrested police officers will often recite you your Miranda Rights. Miranda was actually a case in 1966 in which the court ruled that certain rights need to be given to a person in order to protect his or her 5th Amendment rights.
Most of us have watched enough police related television shows to know what our Miranda rights are. However, there are many misconceptions of what Miranda Rights actually mean. Many people will tell me that they weren’t given their Miranda rights and then ask me will that result in an automatic dismissal of the criminal case. The answer is no. If the police didn’t give you your Miranda rights, it doesn’t lead to an automatic dismissal of your criminal case. (picture of jail bars taken by the_kid_cl
Miranda rights deals with your right against self incrimination. This means that if the police place you in custody, the police need to give you your Miranda rights prior to interrogating you. Now there is a lof of case law that define the term custody and interrogation for the purposes of Miranda.
However, let’s just say that you were arrested and the police interrogate you without giving you any Miranda rights. The court finds that you were in custody and were interrogated by police. You confess to the crime and the prosecutor wants to use your confession against you. If the court finds that by not giving you your Miranda rights prior to your confession are a violation of your constitutional rights, the confession will be suppressed. If the court suppresses your confession, the prosecutor cannot use your confession against you at trial. However, the prosecutor may go forward with other evidence to continue to prosecute or convict you.
You should never talk to the police without first talking to a lawyer. It is never a good idea to start confessing to crimes. Your confession will not help your case in the end. In summary, after arresting and prior to interrogating you the police are supposed to give you your Miranda rights. However, even if the police violate your Miranda rights that will not lead to an automatic dismissal to your case.
Posted by Jason Chan on Fri, Nov 04, 2011 @ 11:33 AM
Everyone knows that when they are detained or arrested by police officers for questioning that they have "The right to remain silent". Thanks to shows like "Law and Order" almost everyone who has a TV knows these infamous 5 words of your "Miranda Rights". Your Miranda Rights are supposed to be read to you while or shortly after you are arrested or detained. But is your right to remain silent permanent? The answer may surprise you; your right to remain silent is NOT permanent. It can be waived and most people do it unknowingly.
The legal dramas on the air always show intense, if not threatening, interrogation sequences. You know what I am talking about, the whole good cop, bad cop routine in order to trap the suspect into saying something incriminating. In the end the person sobs and confesses or sobs and rats someone else out. While these heightened dramatics surely make the show more interesting, it also proves my point that you can waive your right to be silent. If you are in custody, as in the police have you in handcuffs or it is very clear that you cannot leave the police station, 9 times out of 10 you will have been properly given your Miranda rights. They are your right to remain silent, anything you say can be used against you, you have the right to an attorney, and if you cannot afford an attorney one will be appointed to you. After they read you these rights, the police can then use anything you say against you in court. If you exercise these rights only you can waive them. (picture of mouth taken by Phil Dragash)
Ok you are saying, that makes sense, I just exercise my right to be silent by not answering any of their questions and requesting the presence of an attorney, that is easy! Yes it is that easy but you have to remember one thing, after you stay silent or request an attorney present, then STAY silent. All to often people unknowingly waive their right to be silent by simply asking a question about the incident(s) pertaining to their arrest or detainment. If you ask such a question, you will have been deemed to have WAIVED your right to be silent and such question you have asked or statement you made may be used against you in court. It is just best to stay quiet until you have an attorney present.
Your "Law and Orders" of the world always show the officers questioning the suspect even after they have exercised their right to be silent and have requested and attorney. Did you know that if you remain silent or request an attorney that the police have to immediately stop the interrogation? That is a fun fact to know because many police will still try to ask you questions after you have requested your attorney present. Don't give in to their constant harassment, stay quiet until your attorney has arrived. If they do stop the questioning, anything you say to them about the incident(s) will be signified as a waiver of your right to have an attorney present and the questioning will pick up again. Do yourself a huge favor and do not initiate any conversation with the officers if they have stopped their interrogation. Also inn Massachusetts the police have to inform you of when your attorney arrives. After that it is up to you whether you want to speak to the attorney (yes you most certainly do) or decline the assistance.
In the words of Walter Bagehot "An inability to stay quiet is one of the conspicuous failings of mankind." Be smart and informed, don't say anything until your attorney is present.
Article written by Andrew Kussmaul