A few words about Dzhokhar Tsarnaev and Miranda.  Last night, literally within minutes of the announcement that Boston Marathon bombing suspect Dzhokhar Tsarneav had been arrested, certain news outlets (I noticed MSNBC) began reporting that police hadn’t read Tsarnaev his Miranda warnings.  To some, this might have seemed an odd focus of media attention at that particular moment, raising suspicions that the point wouldn’t have merited mention  from these news sources if the arrestee had been a skinhead who espoused a white supremacist ideology.  But that’s a political matter.  Whether and when Miranda warnings must be given is a legal matter, and I find that the public generally tends to misunderstand what the Miranda ruling requires.  On T.V., as soon as the cuffs go onto the “perp,” the cop whips out a Miranda card and starts reading.  But that’s not how it always works in the real world, nor is it how things are always supposed to work in the real world.  Life is not a T.V. script, circumstances matter.

The Miranda ruling requires that, when a person is in custody (meaning for practical purposes that he’s been arrested), if police intend to interrogate that person they must either:  (1) prior to questioning, read Miranda warnings to him and obtain from him a knowing and intelligent waiver of his right to remain silent and to have counsel present during questioning; or (2) forfeit their ability to use against him any of his responses to the questions they ask him.  In a case in which police arrest a suspected terrorist bomber who has been shot and needs immediate medical attention, it wouldn’t be ridiculous for police to postpone the interrogation until the person is rendered fully conscious and/or lucid by medical treatment.  In that case, the appropriate time to read Miranda warnings would be later-on, just before the interrogation takes place, as opposed to while the suspect is being whisked into an ambulance.

In Dzokhar Tsarnaev’s case, spokespeople for the U.S. Justice Department announced that police didn’t read Miranda to him because they intended to invoke the public safety exception to Miranda.  This exception was announced in the 1984 U.S. Supreme Court case New York v. Quarles.  The exception allows police to ask questions of an arrested person, directed toward identifying/eliminating a public safety threat.  Quarles involved a rape suspect who had evidently ditched a handgun in the immediate vicinity, evidenced by his wearing of an empty shoulder holster.  The arresting officer asked Quarles where the gun was, before reading him Miranda warnings.   Quarles told the officer where the gun was and the officer secured it.  The U.S. Supreme Court said that Quarles’ statement identifying the location of the gun could be used against him, because there is a public safety exception to Miranda that allowed the officer ask the question, so he could find and secure loose the weapon before it became a source of harm.

Dzokhar Tsarnaev is suspected of making bombs, using bombs against a civilian population, and perhaps of subscribing to a concept known as jihad that, in the understanding of significant numbers of sometimes loosely affiliated “jihadists,” calls for the use of bombs and other means of mayhem against the civilian population of the infidel Great Satan (a.k.a the United States of America).  If the police or FBI intend to ask Tsarnaev about the possible location of additional bombs, or the identities of other would-be infidel-slayers with whom Tsarnaev is perhaps affiliated, many of those questions might well fall within Miranda‘s public safety exception.   But suppose police ask him questions, without securing a waiver of Miranda rights, beyond those that fit within the public safety exception.  Suppose they seek to gather intelligence information that exceeds the scope of an immediate public safety concern.  If they do interrogate him on such topics, they will forfeit the ability to use Tsarnaev’s responses against him in their case-in-chief at trial.  There is a prescribed remedy for the Miranda violation, and that’s the prescribed remedy.

Typically, when police question a suspect their primary focus is to gather evidence about distinct crimes that have already been committed.  If police fail to comply with the Miranda ruling, they will not be allowed to use against the suspect the statements he makes in response to custodial interrogation.  If the suspect’s statements are crucial to the case against him, for the already-committed crime or crimes, this can be a very costly mistake.  But in this case, if the FBI’s focus is to find out as much as they can about any broader threat of future harm from others, frankly so-what if Tsarnaev implicates himself and the Government doesn’t get to use his words against him.  Again, Tsarnaev can be happy to be  protected from the use against him of his un-Mirandaed statements;  the Government’s ability to use against him all other evidence they’ve gathered, regarding the already- committed bombings, remains unaffected;  and the Government might learn information that allows them to prevent more mass death and dismemberment in the streets of this country.  For anyone who cocks a brow and posits that the Government might coerce Tsarnaev into a false confession without the benefit of Miranda warnings and then claim he was provided Miranda warnings, or some such thing, if that’s how it goes, there’s nothing that the reading of Miranda warnings on the way to the ambulance could have done to prevent that… just so you know.