The recent terrorism events in Boston make us all afraid of those who would kill us for our beliefs, for our society, for our actions around the world, or for seemingly no reason at all. When the opportunity arises to exact some measure of revenge on terrorists (either in the form of torture or the use of our military), Americans overwhelmingly support such demonstrations of power and anger. In the context of the criminal prosecution, our society is governed by the United States Constitution, the 27 amendments thereto, and the case law that interprets that document. At times like these, the impediments on government power (like the Fourth, Fifth, and Sixth Amendments or cases like Miranda, Mapp, Weeks, or Gideon) infuriate us because they seem to favor those who would hurt us, rather than protect the victims of terror.
There are many good reasons why we should follow the rule of law, even when we are under attack. The most important reason is that to violate our own law diminishes the legitimacy of our justice system. There is never a time when cheating the system is good thing. When we cheat, we justify our misconduct by arguing that the bad we are seeking to punish is worse than the bad we are willing to do. That is the definition of moral relativism and should not be the credo of a great democracy. To decide to violate the law in any particular case requires an individual to decide which is the right case in which to cheat. Who then chooses the "decider", and by what criteria will that person be chosen? If "majority rules" is the electing process, then the majority will always dominate all minorities, and the mob will rule. If a individual is given the power to decide when he can abuse power to deal with an accused person, such power always will eventually be misused. It is only where the law itself is supreme that the arbitrariness of individual decision making is reduced.
Second, the validity of Constitution and the Amendments have stood the test of time as honest pillars of a free society. For over 200 years, the American criminal justice system worked without torture or unlawful searches, with the right to remain silent and to be charged by indictment issued by a grand jury, with the right to a speedy and public jury trial and the right to counsel. The landmark cases from the Supreme Court that made clear these rights have also withstood court review and use by the police and prosecutors. For more than 50 years, Miranda ruled that when a right like the right to remain silent is so fundamental a barrier to improper police conduct, the police may not use at trial evidence obtained in violation of the rule. That is why Miranda warnings must be issued before custodial interrogation begins (but is not required at an arrest, contrary to what is seen on television and most people's understanding of the law).
Finally, the "Common Law" system of justice that America inherited from the English courts makes changes in the law an uncommon event. Stare decisis (literally "let the decision stand") is the practice of deciding a case based on how similar cases were decided by courts before. When a courts approves a particular procedure used by law enforcement, then all other police officers and prosecutors can do the same thing if they think their fact pattern matches the one from the prior case. But two fact patterns are rarely the same. And so each new police procedure gets stretched in a new direction over time, sometimes well beyond the original fact pattern approved by the Supreme Court. Since the Supreme Court takes so few cases, it falls to the appellate courts to approve or disapprove novel police procedures. These courts often decide appeals on whether there was "an abuse of discretion" by the trial court below in deciding to approve a new procedure. Even when an appellate court reviews the law relied upon by the trial court, it gives great deference to the "findings of fact" of the lower court, and that is precisely where terrible events encourage the stretching of the law. "Bad facts make bad law" means that when the events are terrible, we justify bad (unlawful) police work and bad (unlawful) prosecution decisions as necessary to prosecute. But for the entire history of this Country there have been terrible events, threats to our Country, and evil men. Many of these threats were as bad as that which we face today with the bombings of the Boston Marathon, and yet our nation and its criminal justice system survived. To cheat the criminal justice system and deny the accused due process and equal protection of the law is to cheat America of its well-earned reputation for honest justice.
There are good reasons to inquire of a terrorist what other threats may exist and of which he may be aware. It could make America safer to obtain timely information and to get the information to law enforcement officials so that they can eliminate the danger. But there is no reason under the Constitution to allow such evidence at trial in violation of the "exclusionary rule" created under Weeks v. United States in 1914. When evidence is obtained in violation of constitutional requirements, it may not be used at trial. Since the Bill of Rights' creation of this country's criminal justice system in 1791, and the passage of the 14th Amendment in 1867, nothing has been as effective at reducing overzealous and improper law enforcement as this rule. Terrible cases tempt us to obtain evidence illegally, but we must resist the temptation lest the whole criminal justice system loses its credibility.
N.B. Below is the FBI memorandum issued in late 2010 (and printed on NYTimes.com on March 25, 2011) which purports to authorize the violation of the Fifth Amendment's and Miranda v. Arizona's requirement that an accused person has a right to remain silent and may only waive that right after being advised that he has the right to remain silent and the right to counsel.
There are many good reasons why we should follow the rule of law, even when we are under attack. The most important reason is that to violate our own law diminishes the legitimacy of our justice system. There is never a time when cheating the system is good thing. When we cheat, we justify our misconduct by arguing that the bad we are seeking to punish is worse than the bad we are willing to do. That is the definition of moral relativism and should not be the credo of a great democracy. To decide to violate the law in any particular case requires an individual to decide which is the right case in which to cheat. Who then chooses the "decider", and by what criteria will that person be chosen? If "majority rules" is the electing process, then the majority will always dominate all minorities, and the mob will rule. If a individual is given the power to decide when he can abuse power to deal with an accused person, such power always will eventually be misused. It is only where the law itself is supreme that the arbitrariness of individual decision making is reduced.
Second, the validity of Constitution and the Amendments have stood the test of time as honest pillars of a free society. For over 200 years, the American criminal justice system worked without torture or unlawful searches, with the right to remain silent and to be charged by indictment issued by a grand jury, with the right to a speedy and public jury trial and the right to counsel. The landmark cases from the Supreme Court that made clear these rights have also withstood court review and use by the police and prosecutors. For more than 50 years, Miranda ruled that when a right like the right to remain silent is so fundamental a barrier to improper police conduct, the police may not use at trial evidence obtained in violation of the rule. That is why Miranda warnings must be issued before custodial interrogation begins (but is not required at an arrest, contrary to what is seen on television and most people's understanding of the law).
Finally, the "Common Law" system of justice that America inherited from the English courts makes changes in the law an uncommon event. Stare decisis (literally "let the decision stand") is the practice of deciding a case based on how similar cases were decided by courts before. When a courts approves a particular procedure used by law enforcement, then all other police officers and prosecutors can do the same thing if they think their fact pattern matches the one from the prior case. But two fact patterns are rarely the same. And so each new police procedure gets stretched in a new direction over time, sometimes well beyond the original fact pattern approved by the Supreme Court. Since the Supreme Court takes so few cases, it falls to the appellate courts to approve or disapprove novel police procedures. These courts often decide appeals on whether there was "an abuse of discretion" by the trial court below in deciding to approve a new procedure. Even when an appellate court reviews the law relied upon by the trial court, it gives great deference to the "findings of fact" of the lower court, and that is precisely where terrible events encourage the stretching of the law. "Bad facts make bad law" means that when the events are terrible, we justify bad (unlawful) police work and bad (unlawful) prosecution decisions as necessary to prosecute. But for the entire history of this Country there have been terrible events, threats to our Country, and evil men. Many of these threats were as bad as that which we face today with the bombings of the Boston Marathon, and yet our nation and its criminal justice system survived. To cheat the criminal justice system and deny the accused due process and equal protection of the law is to cheat America of its well-earned reputation for honest justice.
There are good reasons to inquire of a terrorist what other threats may exist and of which he may be aware. It could make America safer to obtain timely information and to get the information to law enforcement officials so that they can eliminate the danger. But there is no reason under the Constitution to allow such evidence at trial in violation of the "exclusionary rule" created under Weeks v. United States in 1914. When evidence is obtained in violation of constitutional requirements, it may not be used at trial. Since the Bill of Rights' creation of this country's criminal justice system in 1791, and the passage of the 14th Amendment in 1867, nothing has been as effective at reducing overzealous and improper law enforcement as this rule. Terrible cases tempt us to obtain evidence illegally, but we must resist the temptation lest the whole criminal justice system loses its credibility.
N.B. Below is the FBI memorandum issued in late 2010 (and printed on NYTimes.com on March 25, 2011) which purports to authorize the violation of the Fifth Amendment's and Miranda v. Arizona's requirement that an accused person has a right to remain silent and may only waive that right after being advised that he has the right to remain silent and the right to counsel.
F.B.I. Memorandum
Below is the text of an unsigned, internal F.B.I. memorandum, obtained by The New York Times, that provides guidance to agents about when, in the course of interrogating a terrorism suspect, they should advise the suspect of his so-called Miranda rights to remain silent and have an attorney present during questioning.
U.S. Department of Justice
Federal Bureau of Investigation
October 21, 2010
Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States [1]
Identifying and apprehending suspected terrorists, interrogating them to obtain intelligence about terrorist activities and impending terrorist attacks, and lawfully detaining them so that they do not pose a continuing threat to our communities are critical to protecting the American people. The Department of Justice and the FBI believe that we can maximize our ability to accomplish these objectives by continuing to adhere to FBI policy regarding the use of Miranda warnings for custodial interrogation of operational terrorists [2] who are arrested inside the United States:
1. If applicable, agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights. [3]
2. After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs, absent exceptional circumstances described below.
3. There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.
The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case. Depending on the facts, such interrogation might include, for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.
As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed.
[1] This guidance applies only to arrestees who have not been indicted and who are not known to be represented by an attorney. For policy on interrogation of indicted defendants, see Legal Handbook for Special Agents (LHBSA) Section 7-3.2 For policy on contact with represented persons, see LHBSA Sections 7-4.1 and 8-3.2.2.
[2] For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.
[3] The Supreme Court held in New York v. Quarles, 467 U.S. 649 (1984), that if law enforcement officials engage in custodial interrogation of an individual that is "reasonable prompted by a concern for the public safety," any statements the individual provides in the course of such interrogation shall not be inadmissible in any criminal proceeding on the basis that the warnings described in Miranda v. Arizona 384 U.S. 436 (1966), were not provided. The court noted that this exception to the Miranda rule is a narrow one and that "in each case it will be circumscribed by the [public safety] exigency which justifies it." 467 U.S. at 657.
[4]The Supreme Court has strongly suggested that an arrestee's Fifth Amendment right against self-incrimination is not violated at the time a statement is taken without Miranda warnings, but instead may be violated only if and when the government introduces an unwarned statement in a criminal proceeding against the defendant. See Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality op.); id. at 789 (Kennedy, J., concurring in part and dissenting in part); cf. also id. at 778-79 (Souter, J., concurring in the judgment); see also United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) ("[V]iolations [of the Fifth Amendment right against self-incrimination] occur, if at all, only upon the admission of unwarned statements into evidence at trial."); United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) ("[A] violation [of the Fifth Amendment right against self-incrimination] occurs only at trial.")
