Law enforcement has successfully captured Dzhokar Tsarnaev, and DOJ has announced that Tsarnaev is being interrogated without first being read his Miranda rights because the DOJ thinks that the public safety exception to Miranda applies. Back in 2010, I blogged a lot about Miranda in this setting. Here are a few reminders about the law here:

1) A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court.

2) Even if we assume that the police later seek to admit a statement from Tsarnaev from post-arrest custodial interrogation outside Miranda, a court would allow an initial pre-Miranda interrogation to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984). It’s not clear how long the public safety exception will continue to apply: At some point in time, it becomes harder to say that the agents needed to dispense with Miranda in light of the threat to public safety. We don’t have good cases on when that line might be crossed, in part because (fortunately) there aren’t many similar cases. So the longer investigators interrogate Tsarnaev outside Miranda, the more they run the risk that some statements they obtain from him may be inadmissible. But recall that under (1), the government is still free to question Tsarnaev outside Miranda as long as the government accepts the uncertainty of whether those statements would be admissible in a criminal case against him. Assuming that the evidence against Tsarnaev’s many different crimes over the last week is likely to be overwhelming, agents may not need any statements from him for a criminal case. They may simply want whatever intelligence he can provide for use in broader antiterrorism efforts, and Miranda is no impediment in that case. The agents are free to question Tsarnaev outside Miranda to gather intellligence as long as they don’t cross the line into coercing statements from him. See, e.g., Townsend v. Sain, 372 U.S. 293 (1963).

3) It is true that, under existing law, interviewing Tsarnaev for an extended period without reading him his Miranda rights and obtaining a waiver creates a risk that any incriminating statements made after an extended period may not be admissible in court in a criminal prosecution against Tsarnaev. However, if Tsarnaev does end up making incriminating statements that fall outside the public safety exception, and the government wants to use those statements in court against him, the government has a possible remedy to get the substance of even those statements admitted. At the end of the interrogation, agents can give him his Miranda warnings, see if he will waive his rights waiver, and, if he does, try to get Tsarnaev to repeat his pre-waiver incriminating statements. Because the two-stage interview likely would not be deemed an intentional two-step interrogation technique designed to circumvent Miranda, a court would very likely allow the post-Miranda, post-waiver statement under Justice Kennedy’s controlling opinion in Missouri v. Seibert, 542 U.S. 600 (2004).

UPDATE: I have fiddled with the post a bit to make it clearer.

ANOTHER UPDATE: If Tsarnaev is going to be charged in federal court, the more pressing limit on his interrogation may be the limits imposed by Rule 5 of the Federal Rules of Criminal Procedure. See generally Corley v. United States (2009).