I've managed to convince a legal expert, Chinacat67 :cat:, into answering a few legal Q's on this thread
Here are my questions, Chinacat67:
1) Can the authorities compel older brother TT's wife to disclose privileged info regarding TT or is that a violation of her legal rights as his wife?
2) Is there a loophole around the law regarding spousal privilege?
3) Can TT's wife be charged with "obstruction of justice" by her having alerted TT that LE was pursuing him?
4) Or are her actions considered conduct in accordance with spousal privilege and therefore protects her from prosecution?
5) Did the Patriot Act conflict with mirandizing DT?
6) What is the Public Exception Rule to Miranda?
7) What is Quarles rule?
8) What does a "prophylactic rule" mean (e.g., in opinion at
http://www.dorfonlaw.org/2013/04/the-scope-of-mirandas-public-safety.html)?
TIA
Hi All,
I'll give this my best shot---I don't practice in this area of law and I don't practice in MA or federal court, but some of it is general law "stuff" anyway. I'm no expert and this is a free answer--which may be worth only what you paid.
Also to a large degree it will depend if this is ultimately a federal or state case. I suspect federal the way it is going, but you never know...
1. In general, a spouse can testify against the other spouse, but they cannot be forced to testify against the other spouse. It is the testifying spouse's choice, in other words. In MA, that is true, and under general federal law that is true. There are exceptions to the rule, as always in law, but in general, that is the rule. So, can they force her to testify? No. Can she decide voluntarily to testify? Yes.
Also, note that we are talking here only about testimony at trial. These are the rules of criminal procedure--meaning we aren't talking about in an interrogation room or even civil proceedings. It is simply a rule at a criminal trial that one spouse can, but doesn't have to, testify against another. Since he is dead and there will be no criminal trial for him, there is no privilege for her to exert.
2. Always loopholes. If they try in a military court, I have no idea what the rules of evidence are there. Also doesn't apply in proceedings of a domestic nature, nonsupport--ie if it is a family matter, she can be compelled. As far as loopholes in a federal case---the PATRIOT Act is extremely broad in its scope but I don't believe it can alter the rules of procedure in a criminal trial.
3. The authorities can charge anyone with anything, really, it's more a matter of can they convict somebody of something. I haven't been reading this thread so I'm not sure the context, but since, literally, the entire world knew LE was looking for TT, including undoubtedly TT, I can't imagine LE would bring this charge as it would never stick.
4. Again, privilege has to do with testifying at trial only. Any actions she took to help or hinder TT would not come into play and she couldn't "hide" behind the privilege. Her behavior isn't shielded in any way by privilege.
5/6/7. I wouldn't say the PATRIOT Act conflicted with Miranda. I'd say that the Miranda rule exists and the PATRIOT Act exists. The former is to protect individual rights. The latter is to protect the general public. Sometimes those things conflict.
Basically, Miranda is a US Supreme Court decision from the 60's that says police must let people know of their legal rights before LE starts to question them--to an attorney yada yada yada. The convenient way LE has learned to do so is by the Miranda warnings we all know from tv.
Why do they have to let people know? Because if they don't then there is a cloud hanging over the interrogation and investigation and evidence that maybe it was coerced/forced or otherwise obtained in a way that we freedom-lovin' Americans don't tend to like.
So, basically, like spousal privilege, it is really only a rule of evidence that comes into play in criminal trials. If someone is not Mirandized, their defense attorney can claim they didn't know their rights and thus the playing ground wasn't fair and the things the suspect said and did get thrown out of court and cannot be used in the trial. Of course, LE and prosecutors don't want this stuff thrown out at trial, so prosecutors tell LE that they have to follow this rule from the very beginning--ie the arrest--to make sure the evidence can come in at the later trial. That is how it is prophylactic--LE does it to make sure the evidence obtained can be used later at trial. LE doesn't have to Mirandize to make a legal arrest---they have to Mirandize to assure a legal conviction later in court. They do "this" now to get "that" effect later=prophylactic.
In the 80's, the US Supreme Court decided the Quarles case. In that, the police asked the guy, while handcuffing him, where the gun was that they saw. Then they Mirandized him. His defense attorney argued that the gun had to be thrown out because it was asked before he was Mirandized. The court basically said that if there is a question of public safety (ie a loose gun in a room just as you are trying to arrest someone) then the evidence can still come in. In other words, they created an exception to the Miranda rule, so it became more like "you must tell them their rights except if there is a dangerous situation at hand that doesn't give you time to Mirandize and you need info to diffuse the danger". That is the Quarles exception to the Miranda rule.
The FBI, per the memo linked on Dorf's page, took that exception and, with regard to domestic terrorism, said they (the FBI) think the Quarles rule can be used to justify not giving someone Miranda warnings for some amount of time. The memo specifically says it doesn't apply if FBI knows suspect has attorney but otherwise it says "hey, we think it doesn't have to be in just that exact one minute of danger; that with terrorism, public safety can be in danger for a longer period of time since we need to know if there are others out there who are planning things etc."
In the end, the law is: if you want to be able to use at trial, you have to give Miranda warnings. BUT, if there is an immediate concern for public safety, you can handle that first then give Miranda. The FBI has interpreted those laws to say "immediate" can mean more than a minute or an hour.
Also, as the Dorf column points out, it is important to again remember that Miranda is just a rule of evidence for criminal trials. If the FBI or LE don't care if the evidence ever gets in at trial (ie they just want to know if others are out there or whatever and they have enough other evidence they think) then they don't have to worry about Miranda. It is only an advance worry for a trial situation.
And this is all a very simplified (ha!) version of everything. Democracy and law are messy things.
Clear as mud?
