Sunday, May 16, 2010

You Have The Right... know what rights you have.

You have the right to remain silent (Fifth Amendment to the Constitution).
You have the right to an attorney (Sixth Amendment to the Constitution) prior to or during any questioning.

Read this article by Charles Krauthammer. Its interesting, I think that Krauthammer is suggesting that Holder is saying this so that the next time we catch a terrorist alive, the administration won't look like the are bungling it.

They are talking about the fact that the Supreme Court has recognized that Miranda Warnings don't have to be given if the questioning has the possibility to immediately save lives. In a landmark case, the bad guy was caught after a chase. He didn't have the gun on him. A cop asked him where the gun was, because the bad guy had thrown it while running through the neighborhood. He told the cop where he threw it, they found it, and it was used as evidence against him. The Court ruled that the danger of leaving that gun laying around in a neighborhood where a child might find it, outweighed the bad guys right against self-incrimination. Krauthammer, and now Holder are arguing that the ability to stop a possible terrorists inside the U.S. trying to kill Americans, just might outweigh the terrorist's right against self-incrimination.

But I chose to blog about this to explain something that infrequently gets mentioned. Krauthammer touched on it when he said, "The fact that the Times Square bomber did talk after he was Mirandized is blind luck." Catching somebody in the act, or later on, and getting them to talk is a skill. Getting them to talk post-Miranda is an art.

There are literally hundreds of scenarios an agent or cop in the street could find themselves in when questioning somebody. But mostly it comes down to this: If the person is in custody, and you going to ask him questions - he has to be read his Miranda Warnings.

If a terrorist is caught trying to kill people. If that person is going to face charges in a U.S. Court, his statements and admissions CAN'T be used against him if he was not told about the rights our Constitution guarantees. However, you can use witness statements, you can you video evidence, you can use any and all evidence collected at the crime scene, you can use forensic accounting evidence (the paper trail), you can use it all - just not his statements.

OR, you could get everything without Miranda, then go back and re-interview him, and start off with Miranda Warnings. This is such a SMALL issue, and one that should not make headlines.

In 2010, 44 years after the creation of Miranda Warnings, millions of television shows, movies, etc., later - do you think we really have to continue to argue as to whether a person knew their rights. Courts have already said that due to the public campaigns against drunk driving, that a person is presumed to know it is against the law. I think they should say the same about Miranda.

What should make headlines is that the attempted Times Square bombing, the Underwear Bomber, the Shoe Bomber - were FAILURES! Only because of mistakes by the bad guys did we catch them.

No comments: