What If Dzhokhar Tsarnaev Decides Not to Talk?

The law, lawyers, and the court.
April 22 2013 4:09 PM

What If Dzhokhar Tsarnaev Decides Not to Talk?

The police should be able to use all civilized means to make him—as the Fifth Amendment should allow.

Law enforcement officials are seen in front of 67 Franklin St after the capture of Dzhokhar Tsarnaev, the surviving suspect in the Boston Marathon bombings.
Law enforcement officials talk in front of 67 Franklin St. after the capture of Dzhokhar Tsarnaev, the surviving suspect in the Boston Marathon bombings, in Watertown, Mass., on Friday.

Photo by Lucas Jackson/Reuters

The key legal question in the wake of the Boston Marathon bombing is this: Why should courts exclude highly reliable evidence gathered in a civilized interrogation of a suspect, merely because he has been required by law to answer pressing and probing questions?

This isn’t about when or whether Dzhokhar Tsarnaev should be read his Miranda rights. He already knows them. So does almost every American—we have all in effect been read the standard warnings countless times, by cop shows that have taught us our basic Fifth and Sixth Amendment entitlements. So what’s the big deal if Tsarnaev, or any other suspect in any single case, doesn’t get the benefit of this fetishized ritual? 

Also, the Supreme Court has allowed cops to delay the formal catechism in situations involving an imminent risk to public safety. Any suspect in custody can be asked, “Where’s the gun?” or “Where’s the bomb?” Even if the public safety exception somehow doesn’t apply following the Boston tragedy, the only thing the cops would lose if they fail to give Tsarnaev his Miranda warning is the confession itself, so long as the police are acting in good faith. In Boston there is plenty of evidence to convict independent of any confession, and surely the government has acted in good faith. The worst thing a sober critic could say is that officials are broadening the public safety exception too much. But at every point, investigators have been reacting to a fast-breaking, unpredictable, and extraordinarily lethal series of events. Investigators haven’t merely been trying to find evidence of the crimes that occurred but have also been seeking to find out, for example, who else might be involved and still at large and what other bombs might be set to blow. 

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With or without Miranda, Dzhokhar Tsarnaev can insist on consulting a lawyer before answering interrogators’ questions about his culpability. And this is as it should be. The rule of law and the American system of justice, both civil and military, requires lawyers. Even alleged enemy combatants are entitled to legal counsel. The celebrated 1963 case, Gideon v. Wainwright, guarantees government-appointed counsel to people accused of crimes who cannot afford to pay for lawyers—and this too is as it should be. It’s essential for sorting the guilty from the innocent.

 Here’s the real dilemma: With or without a lawyer, Tsarnaev has the right to refuse to answer any questions that might incriminate him. But why is that? Why shouldn’t Tsarnaev have to answer questions—with his lawyer present, if he chooses—just like any other witness who may possess vital information?

The short answer is that the Fifth Amendment—the Constitution itself—says that no person “shall be compelled in any criminal case to be a witness against himself.” But what, exactly, do these words mean, and why? And how should the Constitution, in letter and spirit, apply to ticking-bomb scenarios?

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