Mr. Tsarnaev has the Right to Remain Silent

4/20/2013 10:40:00 PM
No matter what law enforcement says.

I've noticed a number of media outlets getting the facts wrong on an important legal point regarding the recent arrest in the Boston bombings. Apparently an unnamed "official" at the Department of Justice have said that
"we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence"
and much of the press has matter-of-factly reported that the "public safety exception" would be used to deny Dzhokhar Tsarnaev his due process rights known popularly as "Miranda rights."

Admittedly, my expertise is economics not law, but this interpretation did not square with the constitutional law I studied as an undergrad, so I looked up the facts. The FBI has a legal digest of the "public safety exception" here. The bottom line is this: the "public safety exception" does not disparage or in any way alter the rights to which Tsarnaev is entitled. Not one bit.

Instead, the exception is a technical rule stating that in cases where officers had an imminent public safety reason to question a suspect before they were able to read him his Miranda rights, prosecutors will be allowed to admit those statements as evidence in court, provided he can demonstrate that the statements were voluntarily given and not coerced in any way. So no matter whether the police have read Tsarnaev his rights, the fact is that at present Tsarnaev is entitled to have an attorney present during any and all questioning, and to choose to remain silent if he wishes not to answer any questions.