With investigators waiting to speak with 19-year-old Dzhokhar Tsarnaev, the lone surviving suspect in the Boston Marathon bombings, the decision to wait to read him his Miranda rights is eliciting many questions.
Citizens arrested on U.S. soil must be prosecuted in court, not military tribunals -- but some prominent Republicans, notably Rep. Peter King and Sens. Lindsey Graham and John McCain, are calling for Tsarnaev to be tried as an enemy combatant.
Normally, police inform a person being taken into custody of their Miranda rights before questioning them, letting them know that they have a right to remain silent and a right to legal counsel. They are told that anything said can be used against them in a court of law -- but investigators won't tell Tsarnaev that right away.
In criminal cases proceeding normally without the exception, information gathered from pre-Miranda questions could not used by prosecutors in court. With the exception -- which is used in the event of an "objectively reasonable need to protect the public or police from immediate danger" -- they can.
According to the FBI's website, the exception "permits law enforcement to engage in a limited and focused unwarned interrogation and allows the government to introduce the statement as direct evidence."
In Tsarnaev's case, investigators have ample evidence to charge him and may not need any of the information gleaned from unwarned interrogation to convince a jury to convict him, but they could also use it in cases against potential accomplices.
Ultimately, a grand jury will likely hand down an indictment on a death-penalty offense, and FOX 9 News spoke with Joe Tamburino, a criminal defense attorney, about what may happen.
Watch the video for more information.
Heidi Collins: Now that the second suspect Boston marathon bombing suspect is in custody, a new issue is arising should he be treated as a criminal or enemy combatant? Several Congressional Republicans including Representatives Peter King have released a statement saying he should be treated as an enemy combatant.
Representative Peter King: "There are so many potential links to terrorism here. Also, the battlefield is now in the United States, so I believe he is an enemy combatant, and he would not be tried before a military commission"
Heidi Collins: "But Democratic Senator Dianne Feinstein disagrees."
Democratic Senator Dianne Feinstein: "It is really very clear to me that the course that can be taken. You've got the high value interrogation group. They're skilled. They know how to do this. The Miranda rights can be read at a later time."
Heidi Collins: "The 19 year old will not be hearing his basic rights because of the government invoking a public safety exception what does all of that mean, Criminal Defense Attorney Joe Tamburino joins us now with more on the whole legal process."
"Joe as you well know authorities are holding Boston bombing suspect Dzhokhar Tsarnev. He's under arrest without reading him his Miranda rights because of reasons for public safety. Explain to us why it works that way."
Joe Tamburino: "Sure, first of all legally their going to have to read him Miranda but if they don't it's not really going to matter. Because Miranda is for this purpose meaning that if they tell you your rights and you decide to remain silent, whatever you said can't be used against you in your own case but it can sure be used in other cases. So by them saying look we don't know everything that's going on so we're not going to read him a Miranda right away because of public safety, it's really not going to matter because when either they read him his rights or not whatever he tells them in an interrogation is going to be used in other cases, they don't need his confession in this case it's overwhelming evidence. So the information that they want is about other people and other cases and they'll always be able to get that. "
Heidi Collins: "Yeah and a couple of things here too I mean this guy can't even speak yet, I mean he physically cannot speak yet. So there's a little bit of time and maybe that's not a good thing ahh to debate this issue on whether or not they're going to handle it in one way or another, number one. Number two, there are plenty of people including investigators who are saying that there was already a verbal confession ahhhhh within the day that all of this happened in the carjacking and the two of them telling the person who's car that they were taking that yes "we indeed were the ones who set off the bombs."
Joe Tamburino: "Right. That's why they don't need anything else in the case about the bombing they've already got them on that. What they want to do is question them about other items, about people, was he being helped, did he get money, where there's safe houses, what happened to his brother when he was in Russia for six months and that their going to be able to get even if they violate Miranda."
Heidi Collins: "Meanwhile there are lawmakers that are publicly urging the administration to hold him as an enemy combatant. Ummm, you know that has a whole different connotation. This guy has a U.S. citizenship; his older brother did not have that yet so it probably would have been different than that. So in this case this guy is a U.S. citizen."
Joe Tamburino: "That's right, the whole enemy combatant position is done, you can go back to the Hamdi case, U.S. Supreme Court in 2004, he's a U.S. citizen captured on U.S. soil. He's going to be tried as a terrorist but in Federal District Criminal Court. That's what it's going to be. Some of the issues that have been turning on this is, well, should they interrogate him as an enemy combatant...and that's really a non-starter because the FBI when they interrogate this young man as a criminal defendant or as an enemy combatant their still going to have a serious interrogation it's not like if you're a criminal defendant they'll serve you tea and cookies as they ask you questions. It's still going to be a very serious and harsh interrogation."
Heidi Collins: "Yeah but that being said there is an actual label for what your talking about and that's enhanced interrogation techniques."
Joe Tamburino: "That's going to be another issue because if this person was not a U.S. citizen and was captured say in Afghanistan or Pakistan or Russia ummm the enhanced interrogation techniques could very well be used. but since he's a U.S. citizen on U.S. soil, even if people are clamoring for them to use this i do not think the Federal government will be able to do that. He's going to be charged with death penalty crimes, I think he will be convicted. Whether or no he receives the death penalty I think is going to be based upon if he has information that help the Federal authorities in other investigations. Perhaps he could negotiate-life in prison rather than death because he's able to give them a lot of other information on different terrorists activities."
Heidi Collins: "Going be so hard on the victims' family members no doubt about it. Joe Tamburino thank you."
Joe Tamburino: "Thank you."