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Dzhokhar Tsarnaev Miranda 5th Amendment vs. Public Safety Exception

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Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

Every person has the right under the United States Constitution to remain silent and not to incriminate themselves.  The Fifth Amendment states,

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Essentially, the court has interpreted the 5th Amendment of the United States Constitution to require police to give a suspect his Miranda rights in most situations before asking questions.  It is so engrained in our society that most people believe that a person must be given Miranda rights in every situation.  If you ask most people in the street, they will be able to recite the Miranda rights verbatim.  However, the police are not required to give Miranda rights in every situation.  The police need to give Miranda if the statement is made under custodial interrogation.  The suspect doesn’t need to be in actual handcuffs to be considered a custodial interrogation. 

Now when it comes to Dzhokhar Tsarnaev, seeing that he was officially arrested and placed in handcuffs, it will be difficult to argue that it isn’t custodial interrogation. The 5th Amendment rights of a suspect are taken so seriously that only a few narrow exceptions are allowed by the courts.  One such exception is known as the public safety exception.  If the situation is so serious that the police need to get answers to protect the general public from an imminent immediate threat that would cause grave risk to public safety, the police may forego Miranda rights. 

So in the Dzhokhar Tsarnaev Boston Marathon bombing case, the court could reason that there was as imminent immediate threat to the public safety as the police were trying to determine if there were other explosives in the city.  Therefore, the authorities may question Dzhokhar Tsarnaev about the existence of other bombs or weapons they may have placed throughout the city.  If Dzhokhar Tsarnaev made any statements under those circumstances, the statements may be used as incriminating evidence against him at trial.  If the court rules that there was a public safety exception the court may allow the incriminating statement in even without the suspect being given his Miranda rights.  At some point, when there is no longer an imminent or immediate threat to public safety, Dzhokhar Tsarnaev should be given his Miranda rights. If the court deems that there is no longer a threat, the court may suppress any statements Dzhokhar Tsarnaev makes from that point on if the police never gives him Miranda rights.

Contrary to what many people believe, (read more about this in my previous blog about Miranda rights and dismissing a case) failure to give a person Miranda rights does not lead to a dismissal of a criminal case. If the court finds that a person’s rights of self incrimination under the 5th Amendment of the US Constitution were violated, the court may suppress any statements that the suspect makes to the police.  In Dzhokhar Tsarnaev case, the authorities have a lot of evidence against him.  There are reports that Dzhokhar Tsarnaev admitted to the owner of the carjacked Mercedes that he was the bomber of the Boston Marathon.  Seeing that the owner of the car is not the police, the owner obviously doesn’t have to give Dzhokhar Tsarnaev any Miranda rights.  Therefore, his admission to the owner of the Mercedes would still be admissible regardless if his statements to the police are suppressed. 

Even though admissions to the authorities are often times very useful in the prosecution of criminal cases, it is unlikely to have a significant affect ton Dzhokhar Tsarnaev’s criminal case.  In the end, the US Attorney’s Office has a lot of evidence against Dzhokhar Tsarnaev and don’t need his statements to convict him on the charges. 


  1. Outstanding Sir, 
    I have been trying to get some of our local citizens to understand the truth behind Miranda rights and how it plays into National Security. Excellent break down.

  2. Jason Chan says:

    Thank you. I have been getting a lot of questions on this topic. The next blog post will be about the criminal process regarding the Boston Marathon Bomber. Stay tuned.

  3. Anonymous says:

    But isnt it true that they had a 48 hour time limit to read him his Miranda Rights? Could thise be used by the defense in his trial? From what I understand he requested an attorney whole being questioned, does that mean they can continue questioning without one and would it be submissible? Thank you!

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