Common Miranda

It always amazes me how politicians who hate “Big Federal Government” can say with a straight face that people should have few rights when they are accused of a crime. Recently there has been a rash of complaints from these idiots over the fact that the Boston bomber was (gasp) given his Miranda rights.gavel

Last I checked, the first ten amendments weren’t called the Bill of Privileges.

Rights are meaningless if we only give them to people we like. Who needs freedom of speech when you say nothing offensive? Why care about freedom to assemble if you’re just having a picnic? Rights are there for unpopular views and the things we don’t like.

Giving someone the right to remain silent, to see a lawyer, and to not be railroaded by Big Government protects all of us, and keeps us from becoming a police state. I am astounded how conservatives who rail against government “ruling over us” never complain when they rule over us in criminal proceedings.

People also misunderstand Miranda. (I know many of my clients do.) They think that if the police don’t “read you your rights” that the case will be thrown out of court. Wrong, wrong, wrong.

Let’s talk about the original Miranda case, which happened in the early 60s. Ernesto Miranda was arrested for suspicion in a terrible kidnapping and rape case. The police took him in and questioned him without a lawyer and without telling Miranda (who barely spoke English) that he had those rights. He eventually confessed. The Supreme Court held that because his confession was not given “knowingly, intelligently, and voluntarily” it could not be used in court. So did he go free? Not at all. They had plenty of other evidence to convict him even without the confession. And he spent years in prison.

There are some times when all the police have is a confession. Then the case would die. I had a case like that. I won, the DA appealed to the Pennsylvania Superior Court, and I won again. My client was a scared woman who had never been arrested before, was coerced by an officer and told that if she didn’t confess to a theft, he would handcuff her and drag her out in front of all her co-workers and tell the media. Clearly that was not a “voluntary” confession.

But that doesn’t happen very often.

Generally, police like giving Miranda rights because it protects them. If someone talks after being given the rights, it is practically impossible for an attorney to keep that out of evidence. You’d be surprised how many accused criminals talk before seeing a lawyer, stupidly thinking they can make things better by just telling their side of the story. And then they hire me and I’m stuck with a confession I can’t get rid of.

So let’s celebrate our freedom from unconstitutional violations of our right to remain silent, and cheer the Attorney General’s decision to give this bomber his rights. We are better than the people who attack us. We mean what we say in the Constitution. And we are better Americans because of it.

24 thoughts on “Common Miranda

  1. Aren’t you kind of ducking the question in the Boston case? You know that a federal waiver exists for cases of terrorism where there is the chance that other conspirators are still at large or other bombs are planted. That was given as the original reason that he would not be read his rights right away. There was still a time clock on it and I believe that after 48 hours they would have had to mirandize him.


  2. The Boston Marathon bomber was given his Miranda rights when he was conscious enough to understand them in the hospital. Prior to Monday he was mostly unconscious and under sedation.
    The transcript is here:


  3. The one really pissing me off is Senator Lindsey Graham (R-SC) who wanted Tsarnaev tried as a “military combatant”. Senator Graham has yet to identify exactly whose military the Tsarnaevs were allegedly enlisted in.

    Yes, it’s infuriating, but to understand those ostensible “anti-big-government” types, you have to know what they really value. And what they value is their Nation, which is really just their Tribe. They want loyalty to this Tribe, and attacks on their Tribe are not met with criminal charges; they are met with all-out war.

    (This also helps to explain some of the mind-boggling irrational hatred towards President Obama: he doesn’t look like a member of their Tribe. That’s why all of the nonsensical Birther idiocy as well.)


    • Assassinating civilians with drones and detaining civilians for years without so much as a kangaroo court trial will go down in history as the beginning of the end of the golden age of the USA. The 1993 and 2001 attacks on the World Trade Center will be little more than a footnote.


  4. “And what they value is their Nation, which is really just their Tribe. They want loyalty to this Tribe, and attacks on their Tribe are not met with criminal charges; they are met with all-out war.”

    Yes, attacks on our nation should be met with force. I’m fine with that in the context of a criminal trial with the death penalty a possibility. Hard have all-out war on two guys.


  5. For people who are not lawyers or students of criminology, and who have never been surrounded by police officers asking questions, it may be hard to believe just how much pressure one is under to talk while being detained — and how difficult it is to walk away when one is not, technically, being forced to stay and answer questions. There is so much pressure that a false confession is a very real possibility. Miranda isn’t just good for the accused — it’s good for our criminal justice system. It keeps us (well, in theory) from using coerced confessions, and makes it less likely that we imprison the innocent. That’s good for all of us.

    Now if we would decriminalize consensual adult behaviour, end Drug Prohibition, and pass some kind of law preventing prisons from being run for profit (or regulate them at *least* as heavily as we do local utilities), then we might make a dent in making our justice system live up to its name.


  6. I personally don’t see any problems with the way this has been handled. The investigation clearly came to the conclusion that no immediate threat to public safety still existed, and reading Miranda rights to the suspect seems like the appropriate action to proceed with the next phase of the case.

    I imagine the Bush administration would have tried to play up the connection to AQ, since the brothers allegedly learned bomb making techniques from an online tutorial on one of their sites. That way, they could have defined him as an “enemy combatant”, and not have to worry about any of those pesky barriers demanded by citizens.


  7. I don’t see how spending 30 seconds reading someone their rights does anything but make things better … even in a situation where there may be another bomb out there. Those who think we shouldn’t give the rights in those situations are basically saying “Let’s torture the truth out of them first” and that just never happens.


    • Okay. Well you know I don’t support torture, not only because it doesn’t work but because it’s WRONG (funny how somebody morality by Batman, Superman and Captain America can understand that better than some so-called Christians). However, no reading someones Miranda rights is not equivalent to torturing then nor does it imply that you’re going to torture them. It’s basically not reminding them that they don’t have to answer question while there’s a possibility that they m ay have life and death information that they might disclose. Obviously in this case nobody really cares about getting a confession from the guy. He’s on videotape planting the bomb. As evidence, that trumps a confession.


  8. I don’t think torture should be considered acceptable under any circumstances.

    I do like the perspectives that come to your blog. After some more research, I see how there really is no reason to delay reading Miranda rights.


  9. Is there a difference between having the Miranda rights and being read the Miranda rights?

    Doesn’t everyone start off with having the rights? Otherwise they wouldn’t be rights. I certainly understand being read your rights just to be certain you know what they are. And the reading of them by law enforcement demonstrates due diligence in conveying those rights.

    So the difficulty you’re having with the Tsarneav case, Mike, is that his actual Miranda rights were waived, correct?

    But your point about the Bill of Rights isn’t the best example. There are plenty of exceptions to the First Amendment. Yelling “Fire” in a theater; threats of violence against the President; and all cases of slander and libel. The Second Amendment has many exceptions; some valid, others not so much. And so on. It would seem that the Bill of Rights is more a Bill of Freedoms; freedoms which can, in special circumstances, be waived.

    The question comes down to a matter of warfare or not, I suppose. If a country declares war officially on the United States – the last one being Germany in 1941 – then things are more clear cut. So neat and tidy; the way gentlemen go to war.

    But in the cases of groups or individuals declaring war on a nation or people, it is far more gray. What constitutes a declaration of war, and who can declare it? Where is the line crossed, and how can you lay out that line? When does it shift from civilian to military? Where does it go from a legal situation to a defense situation? Is it tied to scope of destruction? To number of lives? To the suspicion of continued organized tactics against a nation?

    In the case of the Aurora and Sandy Hook gunmen; they clearly fell under civilian authority because from the outset it was clear they were not part of a larger terrorist organization that would continue attacks against our nation. It was not at all that clear in the Tsarneav case. In the same way that I would not have granted any US citizen rights to a terrorist taken alive after committing (or with sufficient evidence implicating) an act of terror, out of deep concern for the safety of the public against future attacks, I would act as the government did and waive the Miranda rights of Tsarneav until convinced he was not part of a terrorist cell.


  10. There are indeed exceptions to all of the amendments (including the 2nd, which shocks some people apparently).

    My point was that I don’t see why there would be one for Miranda. I don’t see the reason for denying someone those rights. I don’t understand why we need an exception. What is the exception for? If someone could explain that to me, I’d appreciate it.


  11. I believe that depending upon the situation, the time between apprehension and reading the Miranda should be somewhat flexible. Sometimes there’s an immiment need that may distract or delay an officer from performing that duty. Yes, it is only 30 seconds but in that 30 seconds a lot can happen that an officer might spend his time better focusing on.

    Whether or not one feels the waiver of rights for terrorists is unconstitutional, it is currently legal until such times as it is revoked/overturned. You may not agree with it (heck there’s a lot of laws I feel are either unconstitutional or just plain stupid) but they need to be abided by.

    ((Excuse the spelling errors)).


  12. There is no problem there, Mark, and that happens all the time. The most important thing is to inform them before questioning them. That can sometimes be much later, after they have already been taken to the police station.


  13. Just not reading someone their Miranda rights, no reasoning there. All citizens have these rights already. All the reading of them does is protect the police, the state, so that anything the accused does say is now admissible. By not reading them we haven’t magically removed these rights. This person isn’t going to somehow spill all of their juicy secrets and will end up behind bars because of them. Even if they do happen to say something, anything, it now becomes useless in a court of law.

    The question is what about taking someone’s Miranda rights away? Okay, long exhale here folks. As a country we’re built on this Constitution and a series of Amendments that gives every citizen equal rights and protections and…okay that’s not true but that’s how it’s designed right? In places where we see inequality don’t we work to change that? So ideally we’re all equal and equally protected under the law.

    Now we come to the Boston Marathon bomber case and we know this guy is guilty. We’ve seen videos. He and his brother got into a shootout with the cops. They found bomb making stuff at his place and how to make bomb making information. He kidnapped someone at gun point and stole their car so we have that eyewitness. There are four people dead now and who knows how many wounded. Come on! The guys is guilty as sin. I remember when they were trying to find him. I had coworkers saying they hoped he wouldn’t be taken alive since he’d never talk and it would cost us a ton of money try him. Let’s just save the taxpayers some money and shoot him already.

    So is “we know he’s guilty” a reason to remove someone’s Miranda rights? Is it a reason to remove any of someone’s rights? I’d say “we know he’s guilty” is likely a reason that we have so many of these rights in place. That’s why someone gets a jury of their peers, gets read Miranda in a language that they speak, gets legal counsel, gets so many other protections. Over the years how many people that were just known to be guilty were marched through a trial and into jail or just killed to cut out the middle man?

    If one of my loved ones were killed or injured in this attack I’d be feeling much less civil. If I felt one of mine were in danger and the accused had potential information then I’d likely be less willing to follow the laws and order we have in place. The laws don’t just protect the accused, they don’t just protect the innocent, they protect us as a country. When we respond to terror by being terrified and anarchy by being ruleless they’ve won. If we give up the Constitution to protect the United States of America what the hell are we protecting?

    Do I think Tsarnaev is guilty? Yeah. Do I truly believe it? Oh yeah. Do I know it just short of watching him make and plant the bombs? Pretty much. Do I think that is a reason to remove any of his rights? Just the opposite. We should read him his Miranda rights. We should hunt down twelve plus citizens who say, “What Boston Marathon…there was a bomb?” and lock them away where a newspaper, tv, internet signal can’t reach them because we’ll need a jury. We should insure that he’s treated like every other citizen, innocent until proven guilty, because that is one of the things that makes this country great. It doesn’t matter what we all believe. It doesn’t matter what we all know. It matters what has been proven in court.

    Liked by 1 person

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