Miranda Rights 

When Tsarnaev was captured, authorities indicated they did not intend to read him his Miranda rights, which include the right to remain silent, the right to an attorney regardless of financial circumstances and the warning that any statements can be used to aid his prosecution. It's an address made famous by countless TV police procedurals.

The decision not to "Mirandize" Tsarnaev has sparked debate among advocates, lawyers and legislators. What was the thinking behind the decision? What impact could it have on his case?

Here are the answers to five questions about the decision.

Suspects: Immigrant dream to American nightmare
Does a suspect have to be read Miranda rights?

Law enforcement officials only have to Mirandize a suspect if they intend to use his statements at trial. In the Tsarnaev case, however, the federal government is invoking the public safety exception, a Justice Department official told CNN on condition of anonymity. It's a designation that allows investigators to question a suspect before apprising him of his rights when they believe there is an imminent public safety threat.

The public safety exception dates back to a 1984 case, New York v. Quarles. Its most recent interpretation dates back to a 2010 memo by the Obama Justice Department, and it was explained in a 2011 FBI bulletin.

"When police officers are confronted by a concern for public safety, Miranda warnings need not be provided prior to asking questions directed at neutralizing an imminent threat, and voluntary statements made in response to such narrowly tailored questions can be admitted at trial," the bulletin read.

What other reasons might there be for not reading a suspect's Miranda rights?

Some legislators, notably U.S. Sens. John McCain of Arizona and Lindsey Graham of South Carolina, want the suspect declared an "enemy combatant," a designation that allows a suspect to be questioned without a lawyer and without being informed of his Miranda rights. It applies to foreign nationals caught on an enemy battlefield, but such definitions have become murkier in the "war on terror."

If Tsarnaev, a naturalized American citizen, is given such a designation, he could be tried in federal court and face the death penalty, which Massachusetts does not have.

FBI agents interviewed suspect in 2011

How do Miranda rights affect evidence gained from questioning?

If a person knowingly and voluntarily waives these rights, then anything he says to authorities can be used against him as evidence at a criminal trial. With the public safety exception, the government is allowed to question a suspect without giving him his Miranda warnings and still use the statements at his criminal trial.

If he asks for his Miranda rights, do they have to be read to him?

No. Miranda only matters for statements made by the accused that prosecutors intend to use later at trial.

What if a suspect is unable to communicate?
reports indicate that Tsarnaev was unable to speak. However, it's not necessary to be able to speak; one can communicate in other ways.

But other variables are in play that could delay his arraignment: He must be of sound mind to understand the charges against him. If he gets an attorney before arraignment, his attorney could ask for a delay until he can properly communicate with his client. His attorney is also likely to request that any interrogation by law enforcement cease.

By Todd Leopold, CNN
April 22, 2013 --

Legal Questions Riddle Boston Marathon Case


 Published: April 20, 2013 

The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of Sept. 11, including whether he should be read a Miranda warning, how he should be charged, where he might be tried and whether the bombings on Boylston Street were a crime or an act of war. 

The suspect, Dzhokhar A. Tsarnaev, 19, was taken, bleeding, to a hospital on Friday night, and it remained unclear on Saturday whether he was conscious.

The authorities would typically arraign a suspect in a courtroom by Monday, a process that involves his being represented by a lawyer.

Most experts expected the case to be handled by the federal authorities, who were preparing a criminal complaint, including the use of weapons of mass destruction, which can carry the death penalty because deaths resulted from the blasts.

The decision to seek the death penalty must be made by Attorney General Eric H. Holder Jr. Under federal law, prosecutors must go through what is known within the Justice Department as a death-penalty protocol, under which the United States Attorney’s Office and Justice Department lawyers in Washington analyze all aspects of the crime, as well as the defendant’s background, criminal history and other characteristics.

"I think we can expect the prosecution to put together a meticulous case based on the forensic evidence, the videos, eyewitness testimony and any statements that the surviving defendant makes to the authorities,” said Kelly T. Currie, who led the Violent Crimes and Terrorism section in the Brooklyn United States Attorney’s Office from 2006 to 2008, where he supervised a number of terrorism prosecutions.

"I would think it’s going to be a very strong case, and ultimately all the pieces put together are cumulatively going to show a pretty full mosaic of this defendant’s actions leading up to the attack and in its wake,” Mr. Currie said.

Massachusetts has no death penalty, so a defense attorney in this case might seek to have the case tried in state court. State and county officials might also be eager to prosecute the defendant in the deaths of four of their residents.

President Obama described the attack that Mr. Tsarnaev and his older brother, Tamerlan, 26, were accused of committing as "terrorism.” Tamerlan Tsarnaev was killed.

The administration has said it planned to begin questioning the younger Mr. Tsarnaev for a period without delivering the Miranda warning that he had a right to remain silent and to have a lawyer present.

Normally such a warning is necessary if prosecutors want to introduce statements made by a suspect in custody as evidence in court, but the administration said it was invoking an exception for questions about immediate threats to public safety. The Justice Department has pressed the view that in terrorism cases the length of time and type of questioning that fall under that exception is broader than what would be permissible in ordinary criminal cases, a view upheld by a federal judge in the case of the man convicted of trying to bomb a Detroit-bound airliner in 2009.

Civil libertarians have objected to the more aggressive interpretation of the exception to the Miranda rule, which protects the Constitutional right against involuntary self-incrimination. Anthony D. Romero, the executive director of the American Civil Liberties Union, said that it would be acceptable to withhold Miranda before asking whether there were any more bombs hidden in Boston, but that once the F.B.I. went into broader questioning, it must not "cut corners.”

But some prosecutors suggested that if any confession was unnecessary to convict him, then the F.B.I. might keep him talking without a warning without ultimately invoking the more disputed version of the public-safety exception to introduce it in court.

"I see a fairly strong case against this young man based on a great deal of evidence so, as a prosecutor, the top of my list would not be necessarily to Mirandize him and get a usable confession,” said David Raskin, a former federal prosecutor in terrorism cases in New York.

At the same time, some Republican senators, including John McCain of Arizona and Lindsey Graham of South Carolina, argued that using the criminal-justice system was a mistake and that Mr. Tsarnaev should instead be held indefinitely by the military as an "enemy combatant,” under the laws of war, and questioned without any Miranda warning or legal representation, in order to gain intelligence. 

Still, there is not yet any public evidence suggesting that Mr. Tsarnaev was part of Al Qaeda or its associated forces — the specific enemy with which the United States is engaged in an armed conflict. And some legal specialists also doubted that the Constitution would permit holding a suspect like Mr. Tsarnaev as an enemy combatant.

"This is an American citizen being tried for a crime that occurred domestically, and there is simply no way to treat him like an enemy combatant — not even close,” said Alan M. Dershowitz, a Harvard law professor and seasoned defense lawyer.

Whether legal proceedings take place in state or federal court — and both could occur, one after the other — a defense lawyer for Mr. Tsarnaev could contend that a fair trial was impossible in the Boston area and seek to have it moved. The lawyer could argue that so many people in Boston were affected by the bombings that no objective jury could be empaneled. The trial of Timothy McVeigh, the Oklahoma City bomber responsible for killing scores and injuring hundreds in 1995, was moved to Colorado.

On the other hand, witnesses and officials are all in the Boston area, and a trial that required them to travel extensively could be seen by a judge as an inappropriate burden on the community.

Based on statements by the authorities to date, the case against Mr. Tsarnaev appears relatively strong. The F.B.I. released videos showing him and his brother at the marathon in the area of the explosions, carrying backpacks like those that forensic tests indicated contained the pressure-cooker bombs that killed three and maimed scores. Boston’s top F.B.I. official said when the videos were released that Mr. Tsarnaev, then identified as Suspect 2, placed one bag at the site of the second explosion, outside the Forum restaurant, moments before the second blast.

Law-enforcement officials have also said the brothers admitted to the bombings — as well as to the killing on Thursday night of a Massachusetts Institute of Technology campus police officer — to a man whose car they stole at gunpoint. There is, in addition, the possibility of testimony by one of the bombing victims, a man whose legs were blown off, who told the F.B.I. that he saw Tamerlan Tsarnaev place the other bomb.

Officers who exchanged gunfire with the brothers Friday morning would also be witnesses, and their testimony would most likely focus on the gun battle.

Thomas Anthony Durkin, a defense lawyer and former assistant United States attorney in Chicago, said he doubted that a fair trial could be had for Mr. Tsarnaev anywhere in the country, given the emotion around the case. In any case, he said, the primary goal of a defense lawyer would be "to save his life.”

To that end, he and others said, three factors would most likely be highlighted — Mr. Tsarnaev’s relative youth, at 19; the influence his older brother seems to have had on him; and his own impressive past of sports, friendships and academic performance.

Mr. Dershowitz, who said that any lawyer who took the case would become the most despised person in the country, agreed that a number of factors should play a role in preventing the death penalty. On the other hand, he noted, Mr. Tsarnaev is accused of putting down "a bag full of nails and bombs in front of an 8-year-old kid, and that will probably trump everything.”
• "If captured, I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes. If the Boston suspect has ties to overseas terror organizations he could be treasure trove of information. The last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'"—Republican senator Lindsay Graham, on Twitter.
• "There's no way an American citizen committing a domestic crime in the city of Boston could be tried as an enemy combatant. It could never happen. And that shows absolute ignorance of the law."—Alan Dershowitz, prominent defense attorney and Harvard law professor, speaking on CNN.

 • "The next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will."—Emily Bazelon, Slate.com, on citizen and suspect Tsarnaev not being read his Miranda rights before interrogration.

— "Not surprising that Carmen Ortiz, who refuses to read Tsarnaev his rights, is same DA who pursued aggressive tactics against Aaron Swartz."—Heidi Moore, Guardian.

• "Needless to say, Tsarnaev is probably the single most hated figure in America now. As a result, as Bazelon noted, not many people will care what is done to him, just like few people care what happens to the accused terrorists at Guantanamo, or Bagram, or in Yemen and Pakistan. But that's always how rights are abridged: by targeting the most marginalized group or most hated individual in the first instance, based on the expectation that nobody will object because of how marginalized or hated they are. Once those rights violations are acquiesced to in the first instance, then they become institutionalized forever, and there is no basis for objecting once they are applied to others, as they inevitably will be."—Glenn Greenwald, in the Guardian.