Geoff Corn on Tsarnaev, Miranda, and Questioning Terrorism Suspects

While there is still much we do not know regarding the Boston marathon bombings, there is enough information (and even more misunderstanding) to prompt discussion on the intersection of, and balance between, national security, law enforcement, and “the law of confessions” in domestic counterterrorism cases.

We know that Dzhokhar Tsarnaev cut off interrogation after a federal magistrate judge advised him of his Miranda rights, and that he was cooperating with interrogators prior to that. We also know he was advised of these rights before the government felt it was legally required. This sequence of events again focused attention on the merits and scope of the Miranda public safety exception, which allows introduction of statements made by a suspect during custodial interrogation without first obtaining a Miranda waiver. First established by the Supreme Court in Quarles v. New York, this remains the only Miranda exception that permits the prosecution to use statements that otherwise violate Miranda in it’s case-in-chief. However, the investigatory and evidentiary consequence flowing from the Miranda rule and a suspect’s decision to invoke the right to silence is dictated by more than just the public safety exception. Accordingly, understanding the entire mosaic of confession related jurisprudence is essential to a meaningful discourse on the wisdom of expanding the public safety exception, and the risks and benefits inherent in such an expansion.

It is important to note at the outset that since the Court decided Oregon v. Elstadt in 1985, issuing Miranda warnings to a custodial suspect has not been considered a constitutional requirement. Instead, it is simply a prophylactic requirement the government must satisfy if it seeks to use the suspect’s statement in the prosecution case-in-chief, a point emphasized by Justice O’Connor in her Quarles dissent,

Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the State. Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination and placed the burden on the State. When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled and that they be excluded from evidence at trial.

Thus, whatever the bounds of the public safety exception may be, exceeding those bounds during questioning is simply not prohibited. In fact, Miranda arguably does not even prohibit the continued questioning of a suspect following invocation – it only produces an evidentiary consequence. Accordingly, police and other government interrogators may always make a cost/benefit judgment that the need for answers outweighs the value of admissibility of the statements. Perhaps more importantly, even when a suspect’s statement is deemed inadmissible due to a Miranda violation, it may still used for other purposes, to include impeachment of the suspect and other witnesses at trial. In short, there is only one evidentiary consequence for a Miranda violation: inadmissibility of the statement in the prosecution case-in-chief.

In Quarles, Justice O’Connor also emphasized this very limited evidentiary consequence, indicating that while she believed the confession obtained from Quarles should have been suppressed, the pistol police found as a direct result of the statement was admissible. One year later, in Oregon v. Elstadt, the Court adopted this view when it rejected extending the fruit of the poisonous tree doctrine to evidence obtained as a direct result of a Miranda violation. In that case the Court allowed the prosecution to use a confession made following a Miranda waiver even though it repeated a confession made earlier by the same suspect in violation of Miranda. In 2004 in Patane v. United States, the Court affirmed the limited evidentiary consequence and extended the Elstadt holding to physical evidence discovered as the result of such a violation, holding that a pistol discovered as a direct result of a Miranda violation was admissible. According to Justice Thomas,

[t]he Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun does not apply.

Thus, while pressing the scope of the public safety exception in cases like Tsarnaev’s creates risk the suspect’s statements may be suppressed, this risk is limited to the statement only. If the statement produces fruit in the form of derivative evidence – fruit that might not otherwise have been discovered - it will nonetheless be admissible even if the questioning violates Miranda.

There is one limited exception to this Elstadt rule. In Missouri v. Seibert, police used what the Court called a, “question first, warn later” tactic, whereby the suspect was questioned in violation of Miranda, confessed, and then was immediately issued Miranda warnings and asked to waive her rights and repeat the substance of the previous inadmissible confession. The Court held that in such circumstances, the second statement is really just the product of one continuous round of questioning – questioning that began with a Miranda violation. As a result, the Court concluded the police utilized a “question first, warn later” tactic to deliberately bypass the effect of the mid-stream Miranda warning, invalidating the waiver and resulting in suppression of both statements.

Because of the uncertainty associated with the limits of the public safety exception, cases like Tsarnaev’s may implicate this Seibert rule. In order to mitigate the risk a court might reject reliance on the public safety exception and suppress the initial unwarned statement, interrogators might seek a Miranda waiver following the initial statement and then ask the suspect to repeat the incriminating substance of that statement. In order protect this type of “ask first, warn later” questioning from the risk of triggering Seibert’s limitation to the Elstadt rule, some indication of a break in questioning is essential to distinguish the second warned confession from the first unwarned confession.

It appears the government utilized such a tactic when agents completed their initial questioning of “underwear bomber” Umar Farouk Abdulmutallab – questioning the government clearly believed fell within the scope of the public safety exception. Once the initial interrogation team completed its “public safety” questioning, a fresh interrogation team took over. This fresh team attempted to obtain a Miranda waiver. Although like Tsarnaev, Abdulmutallab invoked his Miranda rights, this tactic was likely used to insulate a second statement from the Seibert rule by demonstrating the two rounds of questioning were distinct. Of course, an assertion of the public safety exception indicates a very different motive for the initial unwarned questioning than existed in Seibert, and this evidence of apparent government good faith may remove such situations from the scope of the Seibert rule. Using a fresh team will, however, bolster the admissibility of a second warned statement in the event a court reject’s the public safety exception and suppresses the first statement.

Finally, it is somewhat surprising that Tsarnaev’s questioning did not trigger discussion of due process suppression, especially considering Tsarnaev was in the hospital as the result of gunshot wounds. Questioning suspects in such a condition always poses a risk a court may treat the statements as the product of actual coercion. While there is no indication the government caused Tsarnaev’s wounds in order to exact a confession, an issue may arise as to whether they exploited his physical suffering. Prevailing on a claim of actual coercion is always difficult. However, the evidentiary consequence is clearly more significant than that associated with pressing the scope of the public safety exception. If a court were to conclude that statements made to investigators are in fact coerced, unlike a Miranda violation this would qualify as a poison tree, tainting any evidence derived from that statement. As for the statement itself, there would be no basis to seek admission once it was assessed as the produce of actual coercion. Unlike Miranda, there is no public safety justification for subjecting a suspect to actual coercion.

The applicability of the public safety exception to questioning suspected terrorists, and the scope of that exception in such situations, remains uncertain. Ironically, the government might actually benefit from pushing the limits of this exception in order to generate the type of litigation over the issue that will provide more certainty for future similar interrogations. The limited evidentiary consequence that results from a Miranda violation mitigates the risk of doing so. The government’s actions were therefore logical from both a national security perspective and an evidentiary perspective. Without pressing for such an expansion, the government may eventually confront the Hobson’s choice between gathering vital intelligence to protect the nation or ensuring a suspect’s statement are admissible at trial. As long as the alternative of military detention looms on the horizon of any case that is considered too difficult to prosecute in federal court, this expansion might ironically accrue to the benefit of suspects like Tsarnaev (how the possibility of military detention in counter-terrorism cases may upset the Quarles trade off between protecting the public and protecting the privilege against self-incrimination is the subject of a forthcoming Fordham Urban Law Journal article I am working on with SMU law’s Chris Jenks which I hope to discuss with Lawfare readers later this summer).