Saturday, April 20, 2013

波士頓馬拉松爆炸 - 受傷嫌疑犯被逮捕_米蘭達權利的例外情況 / Boston Marathon Bombings - Wounded Suspect Arrested_Public Safety Exception to Miranda Rights

Now that the Boston Marathon Bombings suspect has been found and arrested, the issue surrounding the Miranda Rights is again discussed. Media reports indicate that most likely the Public Safety Exception will be invoked. So, what is Miranda Rights?

According to Wikipedia:

米蘭達警告,(Miranda Warning),又譯米蘭達忠告、米蘭達告誡,或米蘭達宣言,是指美國警察(包括檢察官)根據美國聯邦最高法院在1966年米蘭達訴亞利桑那州案(384 U.S. 436 (1966))一案的判例中,最終確立的米蘭達規則。在訊問刑事案件嫌疑人之前,必須對其明白無誤的告知其有權援引憲法第五修正案,即刑事案件嫌疑犯有「不被強迫自証其罪的特權」,而行使沉默權和要求得到律師協助的權利。有關警告雖然源自美國,但由於証供的可信性在普通法系的法庭非常重要,這項警告對司法過程的重要影響,因為這項聲明確保了被還押疑犯所提供的證供的可信性,即使疑犯在偵訊時提供假口供,亦會因為提供假口供或發假誓而受到懲處。而另一方面,這項聲明亦在某情度上保障了疑犯避免被屈打成招。因此,現時世界上採用普通法系的地區都吸納了這項警告的精神,以保被扣押人士的權利及司法的公正。歐洲人權法院自1996年John Murray v. the United Kingdom 案後,已數度表示緘默權及不自證己罪權利乃是國際普遍認可的準則,也是歐洲人權公約第6條所闡述的公正審判理念之核心內容,因此時至今日,歐洲也逐漸採用,要求執法人員必須對嫌犯宣讀這段警告。.....

Miranda rights

The Miranda warning, also referred to as Miranda rights, is a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

The Miranda warning is part of a preventive criminal procedure rule that law enforcement is required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel.

Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial.

In Berghuis v. Thompkins, the Court held that unless a suspect actually states that he is relying on this right, his subsequent voluntary statements can be used in court, and police can continue to interact with (or question) him. ......

Public safety exception

The Miranda rule is not, however, absolute. An exception exists in cases of "public safety". This limited and case-specific exception allows certain unadvised statements (given without Miranda warnings) to be admissible into evidence at trial when they were elicited in circumstances where there was great danger to public safety.

The public safety exception derives from New York v. Quarles, a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a rape suspect who was thought to be carrying a firearm. The arrest took place in a crowded grocery store. When the officer arrested the suspect, he found an empty shoulder holster, handcuffed the suspect, and asked him where the gun was. The suspect nodded in the direction of the gun (which was near some empty cartons) and said, "The gun is over there". The Supreme Court found that such an unadvised statement was admissible in evidence because "[i]n a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer".

Thus, the jurisprudential rule of Miranda must yield in "a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda". The rule of Miranda is not, therefore, absolute and can be a bit more elastic in cases of public safety. Under this exception, to be admissible in the government's direct case at a trial, the questioning must not be "actually compelled by police conduct which overcame his will to resist," and must be focused and limited, involving a situation "in which police officers ask questions reasonably prompted by a concern for the public safety."......


Assuming that the six factors are present, the Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are:
(1) the routine booking question exception,
(2) the jail house informant exception, and
(3) the public safety exception.

Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered "interrogation" under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule. The jail house informant exception applies to situations where the suspect does not know that he is speaking to a state-agent; either a police officer posing as a fellow inmate, a cellmate working as an agent for the state or a family member or friend who has agreed to cooperate with the state in obtaining incriminating information. The window of opportunity for the exception is small. Once the suspect is formally charged, the Sixth Amendment right to counsel would attach and surreptitious interrogation would be prohibited. The public safety exception applies where circumstances present a clear and present danger to the public's safety and the officers have reason to believe that the suspect has information that can end the emergency........


In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right:
To be informed promptly of the reasons therefor.
To retain and instruct counsel without delay and be informed of that right.
To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.....

Hong Kong

The right to silence is protected according to common law. The "Rules and Directions for the Questioning of Suspects and the Taking of Statements" (Rules and Directions), promulgated by the then Attorney General in 1992, stipulate that the caution to be used to remind a suspect of his right to remain silent when he is questioned. The statement are in English, Cantonese and Mandarin Chinese:

English:You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.
Cantonese:唔係是必要你講嘅,除非你自己想講喇,但係你所講嘅嘢,可能用筆寫低及用嚟做證供嘅 。
Mandarin Chinese:你不一定要說話,除非你有話要說。但是,你說的話可能會寫下來並用作證據。

Source of info: Wikipedia




The Inner Space said...

HBB, very clear and concise!

However, the previous night I also heard on CNN or CNBC the younger brother Dzhokar Tsarnaev is an US citizen,but the old brother Tamerlan Tsarnaev was not!

Dzhokar sworn in to be US citizen last 911 and being neutralized he no longer a visa student or green card resident. I remember just
earlier US congress passed a law or consented that even US Citizens
will be killed IF the president thinks fit/right to do so. Now they have a LIVE case on hand!

NEWs:Eric Holder: Drone Strike To Kill U.S. Citizen On American Soil Legal, Hypothetically!

quoting ...

WASHINGTON -- The Obama administration believes it could technically use military force to kill an American on U.S. soil in an "extraordinary circumstance" but has "no intention of doing so," U.S. Attorney General Eric Holder said in a letter disclosed Tuesday.

Holder's March 4 letter was disclosed by Sen. Rand Paul (R-Ky.), who had asked whether the Justice Department believed President Barack Obama had the legal authority to order a targeted strike against an American citizen located within the United States.

The Obama administration, Holder said, rejected the use of military force where "well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat." But in theory, it'd be legal for the president to order such an attack under certain circumstances, Holder said.

"The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States," Holder wrote.

"For example, the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001," Holder continued, referring to the Japanese attack on Pearl Harbor and the terrorist attacks on the World Trade Center and Pentagon. Holder said he would "examine the particular facts and circumstances" if such an emergency were to arise.

Paul, who had threatened to filibuster the nomination of John Brennan as CIA director over secrecy about the U.S. drone program, said in a statement that Holder's "refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening -- it is an affront the Constitutional due process rights of all Americans." Holder's letter was first reported by Adam Serwer of Mother Jones.

Holder is scheduled to appear before the Senate Judiciary Committee for a Justice Department oversight hearing on Wednesday morning. Earlier in the day, members of the Senate Intelligence Committee said the administration had agreed to allow members of the committee to see all of the Office of Legal Counsel memos relating to the targeted killing of American citizens.

end quoting

The Inner Space said...

to avoid the above passage exceeding
posting limit I purposely broke it into two, now continue ....

So on Friday, after evacuation of Watertown MA, theoretically Obama may order to bomb or air raid the town to eliminate Dzhokar Tsarnaev.

I heard that Obama was up all day and night at the sitation room !

Haricot 微豆 said...

SBB: Thanks for your detail analysis which I am still digesting. Will respond asap.

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