Some Thoughts on Miranda
* The Miranda warning is a fairly idiosyncratic (and relatively recent) feature of American jurisprudence. It is not by itself determinative of the absolute fairness or unfairness of a criminal proceeding.
* The Miranda warning concerns only the suspect’s post-arrest utterances, which by all accounts the prosecutors in this case would not need to secure a conviction. They claim, after all, to have photographic evidence of the bombs being planted.
* A brief “public safety” exemption to the Miranda warning is a lawful and long-standing procedure that is rationally applied to the circumstances of this case. It should be over (very) soon, but it’s not by itself illegitimate.
* The Miranda warning, in general, is a good thing, but not as good as it sounds; the primary effect of the Miranda warning is to legitimate police attempts to get you to surrender these rights through coercion or deceit. As I was putting it on Twitter earlier:
* Most crucially, there is a zero percent chance that a guilty Dzhokhar Tsarnaev would somehow escape punishment on the basis of a legal technicality. No court — much less the Supreme Court — would ever allow that outcome. What would happen instead is that a sufficiently large exemption to Miranda would be discovered to allow a conviction to stand. Again, as I was putting it on Twitter:
That’s why from my perspective the big issue is not Miranda, it’s presentment. Right now Tsaraev is still within the scope of the normal criminal justice system, as he should be. The bad outcome here is not his being denied a Miranda warning; it’s him not being allowed any trial at all.