Is everyone detained in custody by U.S. law enforcement entitled to Miranda warnings to remain silent and have a lawyer present prior to questioning? 

This is the question being asked following media reports that law enforcement have questioned (or intend to question) the Boston Marathon suspect, Dzhokhar Tsarnaev, without reading him his rights, relying on a “public safety exception” to Miranda.

Even if information is collected in violation of the public safety exception, and thus cannot be used in prosecuting this suspect, the information may nevertheless be useful and, on balance, worth the risk.

- Alberto Gonzales, Former U.S. Attorney General

The public safety exception recognized by our courts permits law enforcement to question a suspect before giving Miranda warnings based upon a reasonable concern of an immediate threat to the safety of the public or law enforcement. The limited interrogation of the suspect must be directed at eliminating the emergency threat.

Generally, whether the public safety exception is justified in a given case will depend on a host of factors. The concern for public safety must be reasonable under the circumstances. The questioning by law enforcement must be limited, focused on eliminating or neutralizing the emergency. Finally, the suspect may not be coerced to provide an answer; responses to the limited questioning must be voluntary. 

Courts may be willing to provide law enforcement additional latitude in questioning suspects in the national security context because of the potential of grave harm to the public. However, courts will not allow the public safety exception to be used by law enforcement as an end run around Miranda.

Boston authorities have already announced that a state of emergency no longer exists. Consequentially, whether it is reasonable for law enforcement to believe there is a continuing and immediate threat to the public from this suspect or from accomplices is an open question. Nevertheless, this suspect has already shown the intent and capability to harm the public. Thus, a court might allow greater discretion by the government here such as asking whether there are additional bombs or accomplices. 

If authorities have any reasonable basis to believe that an immediate threat to life exists, then questioning related to neutralizing that threat might be appropriate.

Of course, all this presupposes that the suspect is sufficiently coherent and stable, aware of his surroundings, and is able to understand questions and voluntarily provide answers. Some courts have found voluntariness even when a suspect has taken pain medication. Whether the suspect here is capable of voluntarily providing information when asked questions is a judgment call for investigators; a judgment that will likely be challenged in trial.

In a national security investigation, an important objective is to collect information that may prevent another attack and save additional lives. So, even if information is collected in violation of the public safety exception, and thus cannot be used in prosecuting this suspect, the information may nevertheless be useful and, on balance, worth the risk. 

This is particularly true here, where it appears, based on the public record, that authorities already have sufficient evidence to take this case to trial. 

The Miranda warnings exist to protect the rights of the accused from coercion. The public safety exception exists to protect the public and law enforcement in the face of an immediate threat. Both are necessary, and both must be accommodated in our attempt to balance security and liberty in America.

Alberto R. Gonzales is the former United States Attorney General and the former Counsel to President George W. Bush. He is currently the Doyle Rogers Distinguished Chair of Law at Belmont University, Counsel at the Nashville law firm of Waller Lansden and a regular columnist for Fox News Latino.

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