Terrorism, Miranda, and Related Matters

The Fifth Amendment to the United States Constitution provides in part that “No person ... 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.” In Miranda v. Arizona, the Supreme Court declared that

statements of an accused, given during a custodial interrogation, could not be introduced in

evidence in criminal proceedings against him, unless he were first advised of his rights and

waived them. In Dickerson v. United States, the Court held that the Miranda exclusionary rule

was constitutionally grounded and could not be replaced by a statutory provision making all

voluntary confessions admissible. In New York v. Quarles, the Court recognized a “limited”

“public safety” exception to Miranda, but has not defined the exception further. The lower federal

courts have construed the exception narrowly in cases involving unwarned statements concerning

the location of a weapon possibly at hand at the time of an arrest.

The Supreme Court has yet to decide to what extent Miranda applies to custodial interrogations

conducted overseas. The lower federal courts have held that the failure of foreign law

enforcement officials to provide Miranda warnings prior to interrogation does not preclude use of

any resulting statement in a subsequent U.S. criminal trial, unless interrogation was a joint

venture of U.S. and foreign officials or unless the circumstances shock the conscience of the

court. They suggest that warnings are a prerequisite for admissibility in U.S. courts following

overseas interrogation by U.S. officials.

Miranda applies to courts-martial that are subject to a requirement for an additional warning

under the Uniform Code of Military Justice. The statutory provisions governing military

commissions call for the admission of some unwarned, involuntary custodial statements. At least

one tribunal operating under those provisions has concluded that the Fifth Amendment

protections do not apply in the commission trial at Guantanamo Bay of an unprivileged foreign

belligerent.

Rule 5 of the Federal Rules of Criminal Procedure requires that federal arrestees be brought

before a committing magistrate without unnecessary delay. In the McNabb v. United States and

Mallory v. United States cases, the Court declared inadmissible confessions extracted during a

period of unnecessary delay. The cases were decided under the Court’s supervisory authority over

the lower federal courts, and in Corley v. United States, the Court held that McNabb-Mallory had

been statutorily supplemented with a provision that made admissible voluntary confession given

within six hours of presentment. Neither Miranda nor McNabb-Mallory violations preclude the

subsequent prosecution of the accused; they simply preclude the uninvited use of any unwarned,

unwaived statements in such prosecutions.

The 111th Congress featured a number of proposals, some of which would have prohibited the use

of funds to provide Miranda warnings; others would have restricted their use in the interrogation

of high-value detainees overseas; and still others would have called upon the Administration to

provide Congress with information related to the use of Miranda warnings in such circumstances.

No comparable proposals appear to have been introduced in later Congresses.

A related discussion can be found in a Legal Sidebar entitled, Miranda Warnings: The Public

Safety Exception in Boston. http://www.fas.org/sgp/crs/terror/R41252.pdf