Does a person who is arrested still have Miranda rights even if they are not read to him?

Someone would have had to of read those rights else a good lawyer could get a mess of things dispelled from the records. Any cop who failed to read those rights should be reprimanded severely as it could lead to many legal defensive maneuvers that could take years to iron out. As far as refusing to answer any questions.. If he simply requests a lawyer then all questions at that point (by law) would cease.

Interesting question, hopefully a lawyer shows up. I would guess a citizen always has the right to plead the 5th so they don’t incriminate themselves. However, it seems like with certain crimes maybe that right is lost?

I guess they technically could also revoke his citizenship and then he loses more rights, but I haven’t heard that discussed in the media, although I have not watched coverage of the case the last two days.

Hopefully, someone will know the law better than me.

The law states anyone being arrested MUST be read their Miranda rights, or get them in writing. If a confession is made without the person being informed of their rights, a good lawyer will have a judge deem it inadmissible in court. A person can easily recant any confession made at this time and it will not be mentioned in the courtroom.

The whole point of talking to the cops about your crime is that you’ve given up those rights. There is no presumed assumption of these rights in the US, so a person cannot knowingly give up rights he or she is unaware of.

@livelaughlove21 Yet, it has been said that ignorance of the law is not a defense.

But, I agree anything said will probably not be admissible in court if not read his rights. My guess is they have so much evidence on him they don’t care if what he says is thrown out in court, they probably were more concerned with getting intel to possibly prevent more attacks that might coming down the pike, or so we can find the bad guys. Just guessing. What’s your opinion on that idea?

@JLeslie Well, the Miranda rights are not laws, they’re rights. The law tells police that they need to inform others of these rights upon arrest, but the “ignorance of the law” thing doesn’t exactly apply to constitutional rights. Whether you know what they are or not, you’re still entitled to them.

If you’re asking me what I think, I have no clue. To be honest, I stopped paying any attention to the bombing stuff after this guy was caught.

@livelaughlove21 Yes, I was asking you. I have barely watched any media coverage in the last couple days myself, so I didn’t know what was being said related to the bombers about Miranda and other related topics. Thanks. :)

An interesting question I never thought about. Do we have any law-practicing jellies who can give us a definitive answer?

Found this by Googling, and there are many other links.

@Pachyderm_In_The_Room I don’t practice law, but I’m studying Criminal Justice in college. My Forensic Psych professor did her dissertation on Miranda, so we recently had a whole section on that.

I heard an interviewee on NPR a few days back say that in this situation the suspect could exercise his Miranda rights whether or not they had been read to him. He can insist on having a lawyer present and can refuse to answer questions.

@thorninmud My question is: How much does a 19 year old immigrant citizen with English not his first language know or understand of the Miranda right?

There is a public safety “exemption” to Miranda.

If police officers are in a situation that creates a danger to themselves or the public, they are allowed to ask questions that will eliminate the danger without first providing Miranda warning.

@Seek_Kolinahr Right, well that’s the whole point of the “national security exception” business. It takes advantage of the possibility that the suspect may not be aware of his rights.

In this case, acquaintances say this kid is pretty well integrated into the culture (as his social media posts would seem to indicate).

@thorninmud There’s no question that he had these rights and could take advantage of them. But the Miranda rights must be blatantly and clearly stated in every arrest. “Well, he could’ve kept quiet the whole time if he wanted to” doesn’t really cut it.

@josie Yes, but he was in the hospital answering questions before they “got around to” reading him his rights. There was no imminent public safety concern. This article explains why this situation shouldn’t be considered a public safety exception.

@livelaughlove21 I think it could be argued there was concern for other bombs that might have been planted or the possibility other people were working with them.

Why did the US Department of Justice send in a low level magistrate judge to mirandize this man without even consulting the FBI? It is obvious the media is doing their best to hypnotize people into making this terrorist a victim in all this.

@JLeslie Seems like a stretch. Did we have any real reason to believe there were other bombs? Taking advantage of this exception without a good reason is an abuse of the law. It seems there’s still debate on whether this is a valid public safety exception or not.

@bkcunningham He’s still a citizen, and what is allowed to be done to him can easily be allowed to be done to us in the future. In our country, all citizens are entitled to equal protection under the law, and that includes Miranda, and fair trials, and all that stuff.

@livelaughlove21 I think considering his brother had been out of the country for months there was reason to believe there was a bigger plot. There could have been another bombing incident scheduled for another big event.

Yes, of course. That’s why the Miranda decision was handed down by the Supreme Court in the first place. When arrested in Arizona for the crime he was suspected of, the defendant (Ernesto Arturo Miranda) did not receive any counsel or notification of his rights (which was the common practice, pre-Miranda). He was subsequently convicted in the Arizona courts based on his forced confession.

His attorneys appealed the conviction, arguing that his rights were violated because he did not know them and was not informed. The Supreme Court eventually agreed and tossed the conviction because of the obvious violation of his rights, and now everyone is read his “Miranda rights” – named after a criminal. (He was later retried and convicted.)

If you’re not advised of your rights upon arrest (as a US citizen in the USA), then you retain the same rights, whether you’re advised of them or not. And if you confess during questioning (as a suspect) without having been advised, then the confession could be tossed. (However, if you volunteer a confession during “an interview”, which is not the same as an interrogation – although the difference may be hard to spot if you’re the one being “interviewed” – then that’s not the same thing, and that confession may stand.)

The question with the current case is whether the young man who has been arrested and charged is “a regular citizen who committed a crime” or “an enemy combatant”. If the latter, he would be tried before a military tribunal and would not be entitled to the same treatment, rights and status as a domestic suspect.

True, @Seek_Kolinahr. But he was talking before it was determined as to how he was going to be charged. As @josie stated, there is a public safety exception and other exceptions to Miranda.

Yes, he could have seen a lawyer and remained silent. He was not read his Miranda rights under a public safety exception that the courts have carved out.

@livelaughlove21

I am not saying the use of the exception will not come up in court. But the Govt will argue that there was a reasonable concern that there might be more bombs, or cells etc that represented an immediate danger to law enforcement or the public. I think the Govt will win that argument by the way.

I heard a report that any statements he made before he was “Mirandized” could be used for investigative purposes. I do not know how much “evidence”, if any, discovered using pre-miranda statements would stand up in court.

They have rights but in the heat of the moment the cops will try to convince them they do not. Intimidation by well trained interrogators work. The cops understand they don’t have time on their side. What are they going to do if a suspect clams up way before that reading? They will be pissed that’s all.

Jon Stewart was excellent on this last night. Brief excerpt:

“Not reading someone their Miranda rights doesn’t mean they don’t have their Miranda rights. You have Miranda rights under the constitution. You don’t have to say them out loud for them to become “real”. You’re thinking of Beetlejuice.”

I can’t link to the show from Canada, but it was the entire first segment – worth a look.

@Yetanotheruser They have tapes of the men leaving the backpacks with the bombs inside on the street. They also have the person they carjacked, the brother’s said they were the bombers. I’d say that is probably enough right there, and Miranda has nothing to do with either piece of evidence.

@josie I’m sure they will. Doesn’t mean they should, though, legally speaking.

That is a good point, @JLeslie. Not being mirandized doesn’t mean they receive a get out of jail free card.

@bkcunningham But more to the point, being Mirandized doesn’t mean they receive a get out of jail free card.

Ultimately my stance is this:

We know the kid probably did it.

We also know that as citizens of this country we have rights, and that our justice system is based on “priors”.

If we allow our anger at a person to strip basic rights from them, we are stripping those rights from every other citizen at the same time, because that instance can be used to cite a case where ignoring that right was allowed.

I am so glad this kid was brought in alive, because it gave the American justice system a chance to prove to the world that we can be civil to our prisoners, and that our rights are worth more than the paper they are printed on.

@JLeslie

According to what I heard on one of the news programs where they did have a lawyer participating, your line of reasoning is most likely accurate.

At this point they have SO MUCH physical evidence on this kid that if the confession gets tossed, it’s not that critical to the case.

It was deemed far more important to investigate the possibility of a local terrorist cell and more bombings in the immediate future.

Unfortunately, I don’t remember which program or which lawyer since I frequently multitask with the TV in the background and I rotate among several different stations.

It could have been MSNBC (Dan Abrams) or FOX (Napolitano) or whomever Piers Morgan could rustle up (and he manages to get some surprisingly good guests).

As in the original Miranda case, the prosecution side was penalized by the confession being thrown out but it didn’t mean the guy got off Scott free.

If a case is largely circumstantial, then a confession is critical and the cops make damn sure he is properly Mirandized.

But in this case, he is on video with the backpack bomb standing right behind the little boy who was subsequently killed by it, they’ve recovered an identical bomb from their apt. and the carjacking victims testimony so no matter how slick a defense lawyer he gets, he can’t perform miracles.

This is anything but a mere circumstantial case.

Another good point, @glacial. I’m often accused on Fluther of throwing a wrench into a discussion on purpose. That isn’t true. It is the way my mind works in trying to reason or get across a point. That being said, I wanted to say to you @Seek_Kolinahr, that I agree with you 100 percent. Boldly, I agree 100 percent. I just wish it was always (here’s the wrench I’m not throwing) like that with everyone. Take the Deepwater drilling explosion. People were calling for justice before a gathering of any facts. Or the Trayvon Martin case here in Florida. Same thing. I have actually caught myself doing the same thing with this case and I’d like to thank you for reminding me of what is right and that we are a country based on the rule of law.

@Buttonstc Thanks for that information, that basically confirms my take on the situation. I am fine with them not reading him Miranda. I think what the authorities did makes sense. It was a risk for the prosecution, not really a risk for the suspect. I think many people view it as though the suspect did not have his rights protected, but I didn’t see it that way.

@bkcunningham Oh, I hear you. I am frequently accused of devil’s advocacy myself. :)

I think there are provisions in the Patriot Act that make it possible to arrest, question and detain a person without benefit of legal counsel, Miranda or the right to a timely trial.

If they invoked those provisions they can keep him indefinitely without having to prove anything to a judge.

The cops are required to read you your rights but you don’t need Miranda rights read to you. Rights or no rights read, the cops can’t force you to talk (at least not in the U.S.A.). If I was arrested I would simple repeat the following words over and over: “Talk to my attorney”.

Yes, people who are arrested still have all of their Miranda rights even if they are not read to them. In fact, they’ve had all of their Miranda rights since before Miranda was even decided. The issue in Miranda v. Arizona was not whether the rights in question existed, but whether someone had to be informed of them prior to interrogation. Unless and until he is classified as an enemy combatant, then, the law requires that Tsarnaev be allowed to exercise his right to remain silent and his right to legal representation if he requests it.

While many people believe that suspects must be given a Miranda warning in all cases, this is untrue. One of the exceptions is the one invoked in this case: the public safety exemption. Note that this exception does not require there to be a known imminent danger in order to apply. Thus the fact that Tsarnaev had been apprehended and brought to the hospital will not be enough to undermine the FBI’s case for invoking the exemption.

Lastly, and just because I’ve seen a lot of false information being passed around about it’s genesis, the public safety exception was established in 1984 by the Supreme Court case New York v. Quarles. It is not of recent origin, and it was not created by the fiat of either George W. Bush or Barack Obama. And regardless of whether we think this was a legitimate invocation of the exception or not, no lawyer Tsarnaev winds up with is likely to have much success arguing against it.

Under the Patriot Act miranda rights do NOT need to be read until questioning is finished.

@College_girl That is not quite accurate. The USA PATRIOT Act does not change whether or not ordinary American citizens need to be read their Miranda rights. Those parts of the law only affect those classified as enemy combatants.

I taped an interesting interview this morning from Imus.

His guest was Samuel Rascoff, a professor at NYU Law School who teaches on terrorism and law (I’ve since found out he’s got some fascinating experience in this whole area and I’ll post links later when I’m off of iPhone).

Anyhow, when asked about the Boston bomber and Miranda he said that it was a red herring IN THIS CASE.

He said the police aren’t relying on anything this guy tells them to make the case in court since they have so much evidence already.

And, as has already been mentioned, a person is not deprived of his Miranda rights simply because no one read them to him. John Stewart got that one right.

So basically, as I see it, a tempest in a teapot; but, it gives news commentators something to talk about :)

@Buttonstc It seems to me that the Miranda issue is only a red herring if you think that there is no reason to value proper police procedure beyond the successful prosecution of suspects. But surely the question of whether or not Tsarnaev’s rights were violated is of interest independently of whether or not whatever he’s said can or will be used against him in court. Suppose it were your rights being violated. Would it make you feel any better about those violations to learn that they were completely superfluous because you would be going to prison anyway on the basis of other evidence?

I didn’t say they don’t need it at all, I said they don’t need it right away

@College_girl You said they didn’t need to be read until after questioning is finished. That is false.

I don’t know about feeling any better, but I would realize that if there were that much evidence that jail is a certainty, then the whole issue of at which point in time I were formally read my Miranda rights, is a moot point (to say the least).

Hence the point that Miranda does not become effective only after it’s read formally out loud; it is in effect all along.

As a matter of fact, Imus asked Rascoff precisely that and Rascoff replied that, of course, the suspects has Miranda rights. If he chose not to speak, he could have asserted that at any time.

Hence the reason for terming all the DISCUSSION of it as a red herring. He didn’t say that the rights themselves are a red herring but all the discussion swirling around about it is.

As much as anyone may not like the public safety exemption for questioning the subject prior to the reading of Miranda, it’s clear, to me at least, that it definitely applied in this case.

I don’t find it at all unreasonable that they wanted to get as much info on the possibility of other bombs or bombers yet to be activated in the immediate future.

And before you ask, if I were the suspect who set off multiple bombs and had a background indicating jihadi terrorist connections, I would be expecting them to be just as concerned about exactly the same thing.

@Buttonstc I, too, am talking about the discussion. The discussion is about (a) whether or not the public safety exemption really did apply (I agree that it did, but surely it is worth making sure), and (b) whether or not Tsarnaev’s rights were violated (which I would hope everyone would agree is worth clearing up). You seem to think that it doesn’t matter whether or not there was a violation of Tsarnaev’s rights in terms of whether he should have been read the Miranda warning because he still had the rights had he requested them, but the underlying issue is about police procedure and the advisability of being casual about people’s rights. It’s technically illegal for police to push Tsarnaev’s head into a toilet bowl and then demand a confession out of him. Do you think it’s okay for them to do it, though, just so long as they don’t try to use the confession in court? I certainly do not.