If you ever find yourself in law school, please do yourself a favor and take a criminal procedure class. For some reason many law schools don’t make the course a requirement, opting instead to force the much less interesting criminal law class down the collective gullets of law students.
I don’t know why this is the case since as both an attorney or regular citizen, you’re much more likely to encounter a criminal procedure problem in your everyday life, like being pulled over and searched by a cop, rather than becoming intertwined in a murder. I guess law school administrators subscribe to the hipster philosophy of thought when it comes to training future lawyers. God forbid you actually learn something useful in law school because if you did, you would finally see why Law and Order (as well as all of its countless derivatives) sucks and news stories like this one would take on a whole new spin of interesting.
Sorry by the way, I may have imbedded too much law school hate in that opening paragraph, so much so that my actual point might have become lost in it. Yes, law school sucks, but the Federal Bureau of Investigation’s new investigation tactic may also suck too depending on you look at it.
If you didn’t catch the link in the intro, apparently the FBI has just issued an order to its agents telling them not to advise terrorism suspects of their Miranda rights before starting an interrogation. The order came via a three-page FBI memorandum as reported by The New York Times. The FBI states that the reason for this shift away from Fifth Amendment rights is due to public safety. The Department of Justice believes that advising terrorist suspects of their Miranda rights will encourage them to be quiet and withhold valuable information about impending threats on the country. The order also instructs FBI agents to questions these suspects extensively about terrorist plots if it’s believed that they possess such knowledge.
You see? This kind of story is a perfect example of why law students should take criminal procedure. Because for those who didn’t, they may not catch the nuances to the FBI’s actions. Certainly the US Supreme Court has already established in Miranda v. Arizona that law enforcement officials are required to advise people under police custody of their Miranda rights before they begin to question them. We’ve all learned this from television.
However, what the Miranda case really tells us is that Miranda rights aren’t a constitution right, but rather a prophylactic designed to protect a person’s Fifth Amendment right against self-incrimination. Essentially, you can’t have one without the other if you’re trying to use statements gathered from an un-Mirandized interrogation of a suspect against that suspect in court to convict him or her. So certainly, from this perspective what the FBI is doing will never hold up in court because the exclusionary rule will ensure that the information they learn through this tactic can never be used to convict the same suspect of terrorism.
However, the FBI’s goal in this case isn’t necessarily to put the interrogated suspect in jail, but rather to learn about terrorist plots so that they can put a stop to them before the plans go into action. It’s a noble and creative endeavor designed to protect the American people, as we’re told anyway.
But at the same time it just feels a little too dirty, not to mention that it could potentially lead to the paradoxical situation in which a clearly guilty suspect is forced to be let free through the fruit of the poisonous tree doctrine. That rule essentially states that any evidence obtained by police that stems from using an illegal tactic, such as an un-Mirandized interrogation, must be excluded. Therefore, even if in the course of an un-Mirandized interrogation, the FBI learn that the terrorist suspect they’re questioning is actually the kingpin behind a massive terrorist network, all that evidence would likely be suppressed and couldn’t be used against him in a court of law.
But again, supposedly the FBI’s only goal is to ensure the public’s safety. And stopping terrorists plots trump the disadvantages that come with letting one suspect go free, right? Wrong. I think the one accurate thing that we have learned from movies is that the FBI doesn’t mess around and if they know someone is guilty, they’re going to keep tabs on that person and find a separate basis for reasonable suspicion or probable cause to re-arrest that person and then convict them through legitimate methods. This in its own way creates another paradox, because the only reason that the FBI would be continuing to look into that supposed guilty person is because of the illegal interrogation tactic that spawned this whole mess to begin with.
Now, on the one hand you could say this is a good thing because now the FBI has a legitimate terrorist suspect under watch. However, on the other hand what happens when that interrogated suspect turns out to be clearly innocent? Well, from a legal perspective, nothing happens. The US district attorney isn’t going to be pursuing a criminal case against an innocent person and the FBI would have no reason to keep tabs on him or her anymore.
No harm, no foul, right? Yes, but only if you considered the innocent suspect who has to sit through the trauma of an FBI interrogation to be of no harm, then yeah, everything is just groovy.