Constitutional conundrum

The most iconic personification of justice is, without a doubt, that of a blindfolded lady balancing scales of truth and fairness. However, balancing competing interests, attempting to render a “fair” and “just” decision in a complex situation, is easier said than done.

Take the Boston Marathon bombings. It was widely publicized that one of the suspects, Dzhokhar Tsarnaev, underwent about 16 hours of custodial investigation before being read his  Miranda rights. During this time, he confessed to the bombings and that the next target was Times Square in New York. The conundrum that legal analysts are now painstakingly examining and which courts will need to confront is whether his statements should be admissible given that he had not been informed of his rights to remain silent and to the assistance of counsel.

On the one hand, there is the fundamental right against self-incrimination, protected by the Fifth Amendment to the US Constitution and, in our case, Article III sections 12 and 17 of the 1987 Constitution (the former being our constitutionalized version of the Miranda rights). On the other hand, there’s the State’s obligation to uphold public safety.

At its core, the Miranda Warning is an expansion of the right against self-incrimination to cover the period of custodial investigation. Recognizing that a suspect is most vulnerable during police interrogation, then Chief Justice Earl Warren created additional protections in the seminal case of Miranda v. Arizona (1966). Hence, before being interrogated, suspects need to be clearly informed of their right to remain silent, that anything they say can and will be used against them in court; that they have a right to an attorney during the questioning, and that if they cannot afford an attorney, one will be provided for them. In short, it sought to guard against the evils of coerced confessions but at the same time protect the integrity of any confession made subsequent to the reading of said rights.  

In 1984, 18 years after Miranda v. Arizona, a “public safety” exception was developed. This exception finds its genesis in a 1982 dissent by Sol Wachtler, former chief judge of the New York Court of Appeals, in New York v. Quarles.

The case involved a rape suspect who had fled inside a supermarket. The rape victim approached patrolling officers and directed them to the supermarket. The officers caught the man, identified as Benjamin Quarles, but noticed that he was wearing an empty gun holster. While handcuffed and before being Mirandized (yes, it’s an accepted verb), he was questioned as to the whereabouts of his gun. Quarles then admitted hiding the gun in a nearby milk carton. After securing the weapon, the officers then read him his rights. The issue raised was whether his possession of the firearm should be admitted in evidence as it was obtained pursuant to a statement made prior to the reading of his rights.

The Court of Appeals — New York’s highest court ‑ upheld the rulings in the lower courts that it wasn’t admissible. Judge Wachtler dissented, claiming an “emergency exception” — that police ought to be allowed to defuse a dangerous situation before Mirandizing a suspect. The District Attorney appealed the decision to the Supreme Court and then Associate (later Chief) Justice William Rehnquist wrote a majority opinion embracing the exception for “situations where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda”.

In the Boston Marathon bombing, it can be argued that the statements made by Dzhokhar during his 16-hour interrogation are inadmissible as they were obtained in violation of Miranda. Yet the State will certainly assert that the threat to public safety overrode his rights; that this was precisely the type of situation contemplated by the Quarles exception ‑ an occasion involving “overriding considerations of public safety”. What if he had planted more bombs? Suppose there were other operatives planning to detonate more explosives?

There is a move — started a couple of years ago and supported by the Obama Administration — to introduce legislation allowing investigators to question terrorism suspects without informing them of their rights. (Indeed, investigators then were already pushing the boundaries of Miranda. Umar Farouk Abdulmutallab, the “underwear bomber” who attempted to blow up a flight on Christmas Day 2009, was questioned for nearly an hour without being read his rights. Faisal Shahzad, the suspect in the attempted bombing of Times Square in May 2010, was interrogated for 3 to 4 hours before he was Mirandized.)

Interestingly, former Judge Wachtler wrote a 2010 op-ed piece in the NY Times criticizing the proposed legislation, arguing that Miranda exceptions should only be about resolving immediate emergencies. “To open non-emergency exceptions, like the one proposed by the Obama administration for terrorism suspects, would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination,” he wrote, “To compromise the rule would be counterproductive and destructive to the kind of freedom we enjoy….”

In truth, it is indeed hard to keep one’s footing on a slippery slope. Creating exceptions to rules safeguarding a fundamental right should always be scrutinized strictly, lest we irreparably injure the right with a bombardment of exceptions.

That said, public safety is a valuable interest which must be factored into the equation. The question however in this case is whether protecting public safety from imminent danger was the real motive, or whether it was a convenient excuse for unwarranted custodial interrogation.

Returning now to the image of Lady Justice ‑ will the scales tip in favor of the right against self-incrimination or the public safety consideration? Whatever the outcome, I am glad for the debate. It contributes to the exposition of rational arguments — an exercise which I believe is necessary for those who love the law to ensure that Lady Justice is just blindfolded for objectivity, not hoodwinked by trickery.

*   *   *

Greetings: Birth anniversary best wishes to Monica Simbahan who celebrates her special day in Phnom Penh, Cambodia.

*   *   *

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” – Justice Felix Frankfurter, dissenting in US v. Rabinowitz

*   *   *

Email: [email protected]