Sunday, May 09, 2010

"Right to Remain... What?"

The present controversy over Miranda rights reminds me how impossible it is for people overseas to see U.S.-made television shows and movies, such that they're not imprinted with their "rights", even though they live in nations that aren't governed by our Supreme Court's rulings. In fact, they're so insulated from the concept of Miranda rights, we can count on their ignorance even if they have lived in the U.S.

Also, it's good to be reassured that although we train our own soldiers and agents to resist harsh treatment and torture in contexts where nobody expects Miranda-like rights to be offered, our nation's enemies completely neglect the subject. I mean, if you had somebody arguing against reading somebody his Miranda rights because he was brimming with important information that he would confess but for being informed of those rights, you would not find them arguing that they resist interrogation to the point of being repeatedly waterboarded ad which time they'll thank you for freeing them to confess. That is, unless either were deeply stupid or they believed you to be deeply stupid (or if it were the continuation of some kind of contest.)

We can accept the Mark Thiessen argument that foreign-trained terrorists are more resistant to torture, or whatever he chooses to call it, than our own troops - that they won't give up until we exhaust them with physical interrogation techniques, at which time they'll thank us for freeing them to confess. Or we can accept the Thiessen argument that the very same people would be founts of valuable intelligence as long as we don't read them their Miranda rights.

I've also seen a number of people who should know better suggest that if you don't read a suspect his Miranda rights you can't convict him. There also seems to be a widely held belief that if you don't read a suspect his Miranda rights, nothing he says can be used in court against anybody. No, Miranda rights relate only to custodial interrogation and self-incrimination. If you don't want to interrogate a suspect, or if you don't care about using the suspect's statements against him in court, there's no need to read the suspect his rights - and failure to do so is anything but a "get out of jail free" card.

Do suspects confess after being instructed of their Miranda rights? Absolutely. And let's be honest, as I was suggesting in my opening paragraph, Miranda is anything but a state secret. Most elementary school kids can recite the Miranda warnings from memory, and if not at least get the gist of them. And that effect carries over to other nations where U.S. crime dramas are popular... which is to say, pretty much all of them. The idea that a "trained" terrorist won't have been instructed, "If you're caught, you don't have to talk," or "If you're caught, ask for a lawyer", and will be completely ignorant of his Miranda rights seems silly.

The police are very good at getting self-incriminating information out of people after reading them their Miranda rights. Back when I practiced criminal defense, I can't even begin to tell you how many police reports I read where the suspect confessed after being read his Miranda rights, or even after initialing each enumerated right and then signing and dating an "advice of rights" form - it wasn't long before I simply lost count. I had to disappoint any number of suspects who thought that the failure of the police to read them their rights would automatically defeat the prosecution, but not a one of them claimed to be unaware of what the Miranda rights include. Including the foreign nationals.

From a defense perspective, trying to argue that a post-Miranda confession is involuntary is quite difficult. Judges and juries are both resistant to the idea that a suspect, having been formally instructed of his rights, would then decline to exercise those rights or that their statements weren't voluntarily made. For Miranda cases, the "bad facts make bad law" phenomenon has led to the narrowing of the effects of the Miranda ruling and also to the creation and expansion of various exceptions - because nobody, not even a life-tenured federal judge, wants to let a confessed murderer out of prison "on a technicality".

The police are also quite good, and I would assume that the FBI is better, at determining when it is necessary to read a suspect his Miranda rights - the point at which an interview becomes custodial, or the point at which preliminary inquiries that may elicit self-incriminating information ("How much have you had to drink tonight?") reach a point that Miranda rights should be given. I don't think it's unreasonable for A.G. Holder to be asking Congress to clarify the parameters of the public safety exception to Miranda, but the question will ultimately be resolved by the courts.

The long and the short of it? I very much doubt that the police professionals involved in capturing and interrogating suspected terrorists are jeopardizing their ability to collect evidence or to build their cases by reading suspects their Miranda rights. So far, as the facts have come out, it appears that law enforcement officers have done an admirable job of eliciting information from the suspected terrorists they've captured. It's childish - and par for the course, unfortunately - for right-wing propagandists to attack the Obama Administration and its officials for following the law with no sign that their doing so has jeopardized any investigations or anybody's safety.

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