reply to post by charles1952
Wow... That was an interesting read. The rather extreme use of footnotes made it a bit shorter than page count might suggest ....but still, not a
pamphlet by any stretch. I'll also note for general purposes here that while Columbia Law Review isn't above reproach or error ...it's not
far from it in terms of credibility, so anything further in that direction is a moot point as I'm sure we both agree. I'd source it on
something without hesitation, I'll put it that way.
On the specifics of the study. That is disturbing. According to Table 1, page 1315 (It's taken from a larger document, for those wondering about
that) I count 371 cases between Federal and State court combined for use of the PSE for exception to Miranda. The vast majority involving firearms,
but that's just a piece of data for trivial interest, I'd say. The core issue isn't what weapon was involved. Of those, only 93 saw the statements
given, excluded from evidence by the trial judge or appellate court.
As I said... Disturbing, that is. Earlier, it states as part of the established precedent, (I paraphrase) presumption to allow statements under the
exception must be given weight, regardless of post facts indicating public safety may not have been a factor.
I would say that 3 things argue in the summary and conclusions of the report not applying here.
1. Obama's administration, as the source of direction to agencies below, has seriously waffled on this, multiple times.
2. As the lead agency for questioning the suspect here, the FBI had issued the L.E. Bulletin themselves in 2011, advising as broad guidance that the
rule's focus is narrow, specific and should be used with care. The cases cited support that and clearly as they printed it. As a defense attorney,
that would be the #1 piece of argumentative evidence to exclude all which had been said ..and failing that, all which came beyond the direct needs of
3. The cases cited for specifics by the Columbia report do not, as I read it there, take into consideration a situation where questioning carried
across multiple sessions and a total of 16 hours of interrogation. The specific term 'ticking time bomb scenario' isn't used, but language very
similar in meaning and intent is used to indicate the spirit and intent of the exception. The specific cases noted both in the FBI report and in the
Columbia Law Review study are ones where questioning was immediate and on-scene or in the immediate period following capture while an ongoing threat
existed. One dealt with Pipe Bombs and how to diffuse them. A number of them with Firearms not recovered and the need to find them before members of
the public did.
You know the problem? Not a thing in those 3 points excludes the use of the PSE in this case. Nor..does it say it will
apply due to the very
broad nature of the questioning, as reported in specifics through statements and releases/leaks to media. What I think we have here, when this goes to
trial (and it'll almost certainly will, given multiple Capital level counts against him) is a guaranteed trip up the appellate system on at least
this specific issue, right at the outset.
This is the type of case, I believe now by reading your additional material, future precedent may well be set by.
I think I'd have felt better if your evidence in that review had at least settled it in your direction ...when in fact, it makes more questions and a
bigger general quagmire than I'd have thought before. Arguments for, against, and none of them generally cover this case at all ..... yet they ALL
cover it, in other ways.
Oh..this is a migraine, I think ..and for both Prosecution and Defense. I wonder if the media will present how large an issue this might really come
Anyway... Thank You for the new data. It sure didn't solve a thing ...but it did wonders for illuminating how uncertain this truly is for the reality
of how it goes forward.
Mirandizing Terrorists: An Empirical Analysis of The Public Safety