Miranda and Obama

[cthulu2016]

Some Public Safety exception to Miranda as defined in quarles v. new york (1984) is real.

The Obama administration promulgated, years ago, a THEORY that that exception is vastly broader than anyone previously suggested.

To keep saying "The exception is real, the exception is real" is a claim meant to deceive because "the exception" is not equivalent to "The Obama theory of Miranda"

It is like if I claimed my yacht as a business expense on my taxes and, when my crazy interpretation was questioned I just kept repeating that the tax code allows for the deduction of business expenses, as if that said anything about anything.


Anyone is free to jump on the Justice Department bandwagon as say, "I agree with their extremely broad and unusual theory of the law," out of political loyalty, or to express a personal animus for civil liberties.

But nobody can (honestly) claim that this is settled law. It is a highly unusual and legally controversial claim.

And one must question the sincerity or motives of anyone claiming this is just how thigs are done BECAUSE THIS IS THE TEST CASE. This one. Boston bomber. This is the first time anyone has ever tried to employ the 48 hour theory. Ever. First time in the history of the world. First actual test of a theory of the law.

And people who try to tell you "it" dates back to 1984 are seriously confused.

The idea that anything in Quarles (a case about police procedure during an arrest, in the field) suggests that prosecutors can intentionally form a strategy of not Mirandizing a suspect for days, and yet that material thereby gained be admissible at trial (the claim) is extraordinary.

It is not anything the Supreme Court has ever sanctioned.

Give given our current Supreme Court, that theory may well be accepted by the conservative bloc in a 5-4 decision, should it ever reach that point. As a prediction of what the Roberts Court might accept it may well be correct. They may agree.

[morningfog]

1. Without being mirandized, the police cannot elicit

information. A suspect could be in custody and not be mirandized and a confession would be admissible, as long as there was no interrogation or anything that would be likely to elicit a confession from the police.

[cthulu2016]

2. that is true

that does not, however, sanction a prosecutorial strategy of not Mirandizing for days, in hopes that a person will spontaneously confess without interrogation

[morningfog]

4. It doesn't preclude it.

There is no requirement that the police interrogate someone in custody. If they never interrogate, there is no requirement to mirandize.

[cthulu2016]

5. Again, true

Ad if you believe that admissions gained through a prosecutorial strategy of not Miradizing over a period of days in hopes of such admissions are admissible then that is your theory.

[morningfog]

6. I don't know of any constitutional bar against it.

I think most defense attorneys would love it if their clients were never interrogated. Once in custody, they still have to be appointed counsel and counsel can then advise them whether or not to speak. They can't keep counsel away for days. There is nothing I can see wrong with this strategy, constitutionally.

[markiv]

3. you have that right, whether you are mirandized or not

but if you dont know of that right at the critical moment, or if you know of it but incorrectly believe you dont have it until the police give it to you, for all practical purposes, you do not have it

the miranda warning only advises of rights the suspect already has, but many if not most incorrectly believe that the police give you the right, and that you dont have that right until then

law student/former cop explains in a lecture