Dzhokhar Tsarnaev has been arrested in connection with the Boston Marathon bombings. CNN reports that he “lies in a hospital with a gunshot wound to the side of his neck, sedated and intubated,” but that he could be put on a “sedation holiday” and brought back to consciousness to be questioned. This raises several issues. Must he be given Miranda warnings? No. There is no free-standing requirement that police administer Miranda warnings to suspects. Such warnings generally are a prerequisite to using any subsequent statement against the suspect in court, but if authorities don’t care about the admissibility of any confession in light of what appears to be ample other evidence against Tsarnaev, the warnings need not be given. Chavez v. Martinez, 538 U.S. 760 (2003). Does the public safety exception to Miranda apply? Not clear. Some have suggested that Tsarnaev could be questioned without Miranda warnings, and that any resulting statements could still be admissible in court under the public safety exception to the Miranda rule. I wrote about that issue three years ago in connection with the attempted Times Square bombing. The posts are here and here. To summarize, the public safety exception has been applied so far only to very limited questioning in the first moments of interaction between police and a potentially dangerous suspect, e.g., “where’s your gun?” Maybe a court would expand it to encompass protracted questioning of a terrorism suspect, but that’s far from a slam dunk. Readers interested in further exposition of the public [...]
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