Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A BOSTON CRIMINAL LAWYER DISCUSSES MIRANDA AND MAKING STATEMENTS TO LAW ENFORCEMENT DURING MASSACHUSETTS CRIMINAL INVESTIGATIONS

The Boston Criminal Lawyer Blog has discussed the suggested procedure when law enforcement is upon you and investigating you for a possible crime. I have maintained that the safest practice is to not try to out-run, out-talk or out-fight the investigators. I suggest you invoke your right to an attorney and comply politely with what you are required to do.

After all, you are suspected of committing a crime. That is why it is called a criminal investigation.

The case of Dzhokhar Tsarnaev, (hereinafter, the “Defendant”) and the issue of his timely receiving Miranda Rights goes to the very heart of this. Think twice before you wish to make exceptions to his Constitutional Rights because he is the villain of the day.

Tomorrow, you may be a suspected villain.

Attorney Sam’s Take On Miranda Rights, Statements And You

When it comes to answering questions of investigating officers, most folks do not understand the ground rules. The investigators do, of course. They utilize them every day for a living. The Miranda Rights do not fully advise the target of those rules either, by the way. It only advises that the rules exist to some extent.

Miranda Rights are necessary in only certain circumstances. They fit here. The Defendant has to be in custody and in that custody because he is the suspect of the crime about which he is being questioned. Both are undeniable here. It cannot, then, fit under any of the exceptions which would otherwise allow law enforcement to delay reading the Rights. The only one here is the public safety exception.

To say that the Defendant was not entitled to be read Miranda Rights or should be handled as an “enemy combatant” is absurd on its face. He is an American citizen who, allegedly, followed his brother’s lead and participated in several horrible deeds for reasons that are not yet quite clear.

“Sam, does he get a free pass because he was following his older brother?”

No. At least, not unless some as-yet-unrevealed coercion was taking place or something like that. However, the facts as they seem to be known today are what must be taken into account when making grave decisions like denying an American his Constitutional Rights.

Of course, in order to understand this you may also want to consider that he has yet to be proven guilty in a court of law…but let’s put that fact aside for now. I know that it is not terribly popular.

In order to suspend the Defendant’s Constitutional rights, in general, we would have to adopt the position that when someone is accused of a really, really bad crime, they are not entitled to those rights. That is not the law and it is not what our system stands for.

“What about the public safety exception?”

That is, as stated, an exception. Not the rule. As an exception it has to be viewed and used carefully. While there is still debate on this as all the information is not yet revealed, it is certainly plausible (at the very least) that the exception was correctly invoked in this case. That is not an issue we are really going to be able to decide here. The duration that the exception is valid, however, is a different question.

After the Defendant was questioned as to what threats might still exist and began to turn to simply building the case against him or add to general intelligence, the Miranda Rights, in my opinion, should have been given. At that time, simply, the public was at no further immediate risk that could be thwarted by information gained than in any other horrible crime. In fact, at that point thwarting any such threat was not even the goal of the questioning.

“Couldn’t asking the Defendant other questions potentially lead not only to convicting him, but shedding more light on the criminal mind so that we might see signs in the future?”

Potentially. But then, that would be the case in all such matters.

The irony here is that there is a fundamental safeguard here which, if the agents were simply trying to protect the public, they could invoke. Namely, Miranda really only matters as to statements the government wants to use against the Defendant.

“What do you mean?”

If law enforcement simply needed the information, for public safety or otherwise, they could ask away so long as they understood that they cannot use the Defendant’s statements in court against him.

Clearly, they wanted to be able to use the statements against him. This is precisely what the Miranda Rights warn a suspect about. Suspect can then decide not to invoke the rights and go on chatting with law enforcement. Many do.

This Defendant decided not to which indicates that, had he been so advised previously, he would not have told the agents all he ended up telling them.

“I am not planning on blowing anything or anybody up. How does this issue impact me?”

As mentioned above, these rules impact all criminal cases. Should you be unlucky enough to be investigated some day, they will impact YOU.

We have discussed the various ground rules in these interrogations many times. Still, however, some folks (who probably do not follow this blog) do not understand them.

During questioning, law enforcement is allowed to lie to the suspect in order to try to get said suspect to talk. That is called “good police work”. You, on the other hand, are not allowed to lie to the officers. That is called “Obstruction Of Justice” or “Intimidating A Witness”. These are crime.

The land of criminal justice is more complicated than most people know. They find out, though, when they finally engage an experienced criminal defense lawyer who can guide them.

Often, however, by then they have done great damage to themselves and their case.

“But, Sam, if I am innocent, why do I have anything to hide if I just stick to the truth?”

Factually innocent people are often charged with crimes. Read the papers. Read my past postings. Talk to anyone with any experience in the criminal justice system. We even know that innocent people are sometimes convicted.

If you have a heart problem, you want to see a cardiologist. Simply, she will have the information necessary to guide and help you. If you have a criminal justice problem, you need an expert in that field.

It is called a criminal defense attorney.

An experienced criminal defense attorney.

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