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Dzhokhar Tsarnaev is alleged to have confessed twice to the Boston Marathon bombing. Yet both “confessions”—although widely mentioned in the media—are so fraught with problems that neither may be entered into evidence at the upcoming trial.

“Confession” #1

The problem with the first confession has to do with what’s known in legal jargon as “chain of custody.” According to law enforcement officials, Tsarnaev scrawled a series of self-incriminating notes on the side of the dry-docked boat in which he hid after a shootout with police in Watertown, Massachusetts.

But instead of maintaining close custody of these notes, the government has admitted that the bullet-ridden boat was left open for days “in a semi-public space where it might have been photographed by individuals not associated with this investigation.”

Indeed, ABC News apparently took a photo of at least some of the notes, possibly with the assent of a law enforcement officer. More to the point, during the time when the evidence was unsecured, anyone might have tampered with the notes, rendering them highly dubious as evidence.

Breaking the Chain

The importance of securing evidence from tampering is underlined in this passage from a Department of Justice website:

“To maintain chain of custody, you must preserve evidence from the time it is collected to the time it is presented in court. To prove the chain of custody, and ultimately show that the evidence has remained intact, prosecutors generally need service providers who can testify:

• That the evidence offered in court is the same evidence they collected or received.

• To the time and date the evidence was received or transferred to another provider.

• That there was no tampering with the item while it was in custody.”

While breaks in the chain do not automatically render evidence inadmissible, defense attorneys can challenge the authenticity of anything that has not been properly secured.

Confession—or Last Rites?

Only parts of the notes were made public in the April 2013 indictment of Dzhokhar Tsarnaev. According to the prosecution, this is what he wrote:

“I’m jealous of my brother who ha[s] [re]ceived the reward of jannutul Firdaus (inshallah) before me. I do not mourn because his soul is very much alive. God has a plan for each person. Mine was to hide in this boat and shed some light on our actions. I ask Allah to make me a shahied to allow me to return to him and be among all the righteous people in the highest levels of heaven…The U.S. Government is killing our innocent civilians but most of you already know that.”

And:

“As a [UI] I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all. Well at least that’s how Muhammad (pbuh – or Peace Be Upon Him) wanted it to be [for]ever, the ummah is beginning to rise/[UI] has awoken the mujahideen, know you are fighting men who look into the barrel of your gun and see heaven, now how can you compete with that. We are promised victory and we will surely get it. Now I don’t like killing innocent people it is forbidden in Islam but due to said [UI] it is allowed. All credit goes [UI]. Stop killing our innocent people and we will stop.” (Editor’s note: UI stands for unintelligible.)

But this transcript is clearly not complete. The ABC News image shows that, at the beginning of one of the notes, Dzhokhar Tsarnaev wrote, “I bear witness that there is no God but Allah and that Mohammad is his messenger. [Obscured by bullet hole] actions came with a (me)ssage and that is [obscured by bullet hole], In’shallah.”

The first sentence is a version of the Muslim testimony of faith known as the Shahada, one of the Five Pillars of Islam. One of the times it is recited is when a Muslim feels close to death.

While the scrawled notes allude to “actions” the Tsarnaev brothers took, nowhere in the notes that have been released to the public is there a direct mention of the Marathon bombing or the shootout with the police.

“Confession” #2

According to media reports based on law enforcement leaks, Dzhokhar Tsarnaev allegedly confessed his involvement in the Marathon bombing while recovering from gunshot wounds in a Boston’s Beth Israel Deaconess hospital.

The defense claims that law enforcement officers violated his rights by questioning him while he was heavily sedated, failing to read him his Miranda Rights and ignoring his requests for a lawyer. On these grounds the defense has stated it would challenge use of anything the defendant said in the hospital during any part of the trial.

The prosecution has said that it does not intend to use Tsarnaev’s hospital statements in making the case against him, but that it might introduce them to challenge the credibility of defense witnesses, or during the sentencing phase if he is convicted.

***

With both alleged confessions under a cloud of doubt, and the probability that Tsarnaev will not testify, the public may never hear from the man at the center of the Boston Marathon bombing about his motive or intentions.

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