Some Confusion About the Reading of Miranda Rights

[Snowboarder_Bo]

@Lakai

Other bombs or other planned attacks on America.

perhaps you should read up on what “imminent” means (hint: it doesn’t mean “possible”)

[Whack-a-Mole]

I’ll post the following since it is said more eloquently and with more credibility than I can muster. Worth a read to remember what Miranda is really all about.

It is relevant to define explicitly the spirit in which the Fifth Amendment’s privilege against self-incrimination should be approached. This command of the Fifth Amendment (“nor shall any person . . . be compelled in any criminal case to be a witness against himself. . . .”) registers an important advance in the development of our liberty – “one of the great landmarks in man’s struggle to make himself civilized.” [n1] Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. [n2] Such a view does scant honor [p427] to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice. The difference between them and those who deem the privilege an obstruction to due inquiry has been appropriately indicated by Chief Judge Magruder:

Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten today. See VIII Wigmore on Evidence (3d ed.1940) § 2250 et seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949). They made a judgment and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent, as well as to the guilty, and we have been admonished that it should be given a liberal application. Hoffman v. United States, . . . 341 U.S. 479, 486. . . . If it be thought that the privilege is outmoded in the conditions of this modern [p428] age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.

Maffie v. United States, 209 F.2d 225, 227. Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process.

No doubt, the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil – a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies.

As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. It is appropriate to read the conviction expressed in a memorable address by Senator Albert J. Beveridge to the American Bar Association in 1920, a time when there was also manifested impatience with some of the restrictions of the Constitution in the presumed interest of security. His appeal was to the Constitution – to the whole Constitution, not to a mutilating selection of those parts only which for the moment find favor. [n3] To view a particular [p429] provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.

SOURCE: Ullmann v. United States, 350 U.S. 422, SUPREME COURT OF THE UNITED STATES

[Gangster_Octopus]

@Lakai

Other bombs or other planned attacks on America.

As Snowbarder Bo indicated this doesn’t really qualify as “imminent danger”, it qualifies as fishing. It isn’t imminent danger to see if there is possibly imminent danger.

[Lakai]

@Gangster_Octopus

As Snowbarder Bo indicated this doesn’t really qualify as “imminent danger”, it qualifies as fishing. It isn’t imminent danger to see if there is possibly imminent danger.

According to U.S. v. Reyes, 353 F.3d 148 (2d. Cir. 2004) the public safety exception applies so long as the questioning “relates to an objectively reasonable need to protect the police or the public from any immediate danger.” The standard for reasonableness in these cases is a totality of circumstances standard.

After a quick search it doesn’t seem that the courts have dealt a case of terrorism and the public safety exception. Whether questions like “are there other bombs” fall under the exception depends on whether the police can show that based on their knowledge and the evidence available to them, they could reasonably suspect the suspect would have made other bombs. Based on what police know about terrorists who try to detonate bombs, it’s not far fetched to assume that they might have made more than one.

As for other planned attacks on America, I guess questions about future attacks (or whether anyone is currently planning an attack) might be out of the exception’s scope, but questions about other bombs can fall within the exception.

[Magiver]

@Lemur866

What’s the problem again? Is it that we need these guys to cooperate RIGHT NOW to prevent a ticking time bomb scenario? Or do we need them to cooperate so we can gather intelligence on whatever support network they had, if any?

What exactly do you think should happen? We dissappear the guy into a CIA secret prison, and torture him indefinately, and when we’ve squeezed him for everything just put a bullet in his brain and bury him in a shallow grave out in the desert?

You really want to give the government the power to seize, torture and kill anyone they like? This is your model for America?

Your post makes absolutely no sense. None. Nobody was tortured in either of the cases discussed and nobody is suggesting it. This is a discussion about miranda rights. There are times when it is legal to hold off mirandizing someone and this was done in both cases.

[Bricker]

@Gangster_Octopus

IN the last couple of days some prominent Republicans (John McCain and Lindsey Graham) have said that the Times Square Bomber should not have been read his Miranda Rights.

We can now add to the list some prominent Democrats:

@NY Times

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.

[Gangster_Octopus]

@Bricker

We can now add to the list some prominent Democrats:

Which makes no sesnse because Miranda exceptions are not legislated, they are Constitutional rights, the exception are determined by the court. So in order to get what they seek there would neeed to be a court case that would allow the court to expand the government’s discretion. But they can’t just make a law about it.

[Zakalwe]

@Gangster_Octopus

Which makes no sesnse because Miranda exceptions are not legislated, they are Constitutional rights, the exception are determined by the court. So in order to get what they seek there would neeed to be a court case that would allow the court to expand the government’s discretion. But they can’t just make a law about it.

Sure they can. The fact that the law they make will have to go through judicial scrutiny doesn’t mean they can’t make one. They make laws like that all the time…

[BigT]

@Zakalwe

Sure they can. The fact that the law they make will have to go through judicial scrutiny doesn’t mean they can’t make one. They make laws like that all the time…

Right. Congress has the power to make laws, but the Court only has the power to negate them after they pass. If the Court could negate laws that had not passed, then they would be the lawmakers.

[Steve_MB]

@Magiver

No, the imminent danger aspect of it was what I was referring to.

Well, then, you concede that McCain et al are not actually attempting to accomplish anything, and are simply engaged in cheap demagoguery for the tea-and-peanut gallery.

[Lakai]

@Gangster_Octopus

Which makes no sesnse because Miranda exceptions are not legislated, they are Constitutional rights, the exception are determined by the court. So in order to get what they seek there would neeed to be a court case that would allow the court to expand the government’s discretion. But they can’t just make a law about it.

There probably won’t be a law about it, just a policy change. The Justice Department will just change their procedure to expand the number of questions they will ask under the public safety exception. If that happens a case about the new procedure will probably make its way up to the Supreme Court and then it will decide the issue. With so many conservatives on the Court I’m guessing the policy will be upheld.

[Gangster_Octopus]

@Lakai

There probably won’t be a law about it, just a policy change. The Justice Department will just change their procedure to expand the number of questions they will ask under the public safety exception. If that happens a case about the new procedure will probably make its way up to the Supreme Court and then it will decide the issue. With so many conservatives on the Court I’m guessing the policy will be upheld.

This is the path that I also think will happen. I just think it is strange for the administration to ask for a law of some kind. Any law would be unconstitutional on its face. From Orin Kerr:

And the Supreme Court has been pretty clear that Miranda doctrine is up to the Justices, not Congress: As the Court put it in Dickerson v. United States, 530 U.S. 428 (2000), “Miranda announced a constitutional rule that Congress may not supersede legislatively.”

So I wonder what is really the point of it.

[Magiver]

@Steve_MB

Well, then, you concede that McCain et al are not actually attempting to accomplish anything, and are simply engaged in cheap demagoguery for the tea-and-peanut gallery.

I concede you don’t understand the law, which was not broken by the current administration’s delay in merandizing suspected terrorists.

[Doctor_Who]

This whole “statute our way around Miranda” idea feels like 18 USC 3501 all over again to me… anyone else? If you are unfamiliar/interested, take a look at this case. I think it’s quite possible that (a) Scalia’s dissent might find some traction, and (b) the court might be inclined to uphold a statutory Miranda workaround for “terror” suspects in deference to national security.

Just noticed Octopus quoted from the same case, so great minds?

[Bricker]

@Steve_MB

Well, then, you concede that McCain et al are not actually attempting to accomplish anything, and are simply engaged in cheap demagoguery for the tea-and-peanut gallery.

And Holder?

You know, the actual Attorney General, the one who sets policy for the FBI, that preeminent federal law enforcement agency? Is he also engaged in cheap demagoguery for the tea-and-peanut gallery?

[Bricker]

@Doctor_Who

This whole “statute our way around Miranda” idea feels like 18 USC 3501 all over again to me… anyone else? If you are unfamiliar/interested, take a look at this case. I think it’s quite possible that (a) Scalia’s dissent might find some traction, and (b) the court might be inclined to uphold a statutory Miranda workaround for “terror” suspects in deference to national security.

Just noticed Octopus quoted from the same case, so great minds?

Heh. Here is a post I made back in March of 2000, ten years ago, discussing this case before the Supremes ruled on it.

[Sam_Stone]

Wow Bricker, you sure killed this thread. I guess the threat to Miranda rights only matters if a Republican proposes it.

We can file this thread in the same dead-letter pile as the threads expressing outrage over Guantanamo Bay, indefinite detention, warrantless wiretapping, the Patriot Act, the wars in Iraq and Afghanistan, military tribunals, rendition, the increasing boundaries of executive power, don’t ask don’t tell, marriage rights for gays, no-bid contracts to Halliburton, lobbyists influencing policy, government secrecy, controlling the White House press pool, 3 AM bill signings, civilian collateral damage from unmanned Predator strikes, telling citizens to watch what they say, calling dissenters unpatriotic, and making legislation in the back room with the help of special interests.

Because all of things are outrageous - but only when Republicans do them.

[Raygun99]

I hadn’t seen this thread until now, so I guess I’ll say it then - it’s bullshit of Holder to suggest changing Miranda laws for terrorism suspects. People watch too much 24 if they think current laws can’t handle these idiots. And it’s notable that he’s getting pushback from Congress.

[Doctor_Who]

@Sam_Stone

Wow Bricker, you sure killed this thread. I guess the threat to Miranda rights only matters if a Republican proposes it.

We can file this thread in the same dead-letter pile as the threads expressing outrage over Guantanamo Bay, indefinite detention, warrantless wiretapping, the Patriot Act, the wars in Iraq and Afghanistan, military tribunals, rendition, the increasing boundaries of executive power, don’t ask don’t tell, marriage rights for gays, no-bid contracts to Halliburton, lobbyists influencing policy, government secrecy, controlling the White House press pool, 3 AM bill signings, civilian collateral damage from unmanned Predator strikes, telling citizens to watch what they say, calling dissenters unpatriotic, and making legislation in the back room with the help of special interests.

Because all of things are outrageous - but only when Republicans do them.

Cool. You just listed all the reasons why I would be much more suspicious if the Republicans suggested this.

I’ll be here all week!

[Lakai]

Under Holder’s new suggestion the only questions police will be able to ask suspects without reading their rights first are questions about other immediate threats to public safety. That’s a pretty limited exception. If they try ask about the suspect’s own crime then they’ll still have to read him his rights.

And police can always ask suspects questions about other terrorists plots without reading rights. They just won’t be able to use anything the suspect says in court. But if they have other evidence against the suspect then the fact that they can’t use his statements won’t matter much.

The Miranda rights do not really represent a big hurdle for the police unless the suspect knows how to use them. But in that case the suspect won’t talk even if his rights are not read to him.