There’s no end to the puzzling legal questions surrounding the Boston bombing case.
We learned today, for instance, that the Boston bombing suspect was advised of his right against self-incrimination by a federal magistrate judge during a court hearing in a hospital room, according to a Wall Street Journal report. The judge made the call to apprise Dzhokhar Tsarnaev.
At that point, according to WSJ, Mr. Tsarnaev reportedly clammed up, frustrating the government’s interrogation efforts.
But if the Justice Department wanted to question him further, why couldn’t prosecutors put off the hearing?
The short answer is that the “public safety” exception to the Miranda requirement bumped up against both the Fourth Amendment and a statutory “right to presentment.”
The Fourth Amendment dictates that when a suspect is arrested without a warrant, the person has a right to a prompt review of the probable cause for their detention. That review must happen as soon as possible. If the delay stretches beyond 48 hours, the government must demonstrate the “existence of a bona fide emergency or other extraordinary circumstance,” the Supreme Court has ruled.
In addition, the Federal Rules of Criminal Procedure say:
A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . .
The “extraordinary circumstances” envisioned by the Supreme Court are logistical ones, says University of Memphis Law Professor Steven J. Mulroy, who teaches constitutional law and civil rights. Possible examples: the magistrate judge fell ill and couldn’t be replaced, or the suspect has a medical emergency or there was a hurricane blocking access to roads.
“We need to pump this suspect for more information to protect national security — that’s not an exigent circumstance,” Mr. Mulroy told Law Blog.
Was the judge required to advise Mr. Tsarnaev of his right to remain silent?
There’s no constitutional requirement that a suspect be advised of his Miranda rights at an initial appearance proceeding, said Mr. Mulroy.
But what happens at such a proceeding is also governed by federal statute. As Columbia Law Professor Daniel Richman noted to Law Blog, a suspect needs to be advised of certain Miranda-like rights, including his right not to make a statement. That’s laid out in the federal rules.